CHAPTER 43-01 Abstracters

43-01-01. Board — Definition.

Whenever the word “board” is used in this chapter it means the abstracters’ board of examiners.

Source:

R.C. 1943, § 43-0101.

43-01-02. Abstracters’ board of examiners — Appointment — Term of office — Vacancies.

The abstracters’ board of examiners shall consist of three members each of whom must be appointed by the governor for a term of six years, with the terms of office so arranged that one term and only one expires on March thirty-first of every odd-numbered year. One member of the board must be an abstracter. Each member of the board shall qualify by taking the oath required of civil officers and holds office until that member’s successor is appointed and qualified. Any vacancy on the board must be filled by appointment by the governor for the unexpired term.

Source:

S.L. 1925, ch. 1, § 2; 1925 Supp., § 3099a2; R.C. 1943, § 43-0102; S.L. 1981, ch. 435, § 1.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-01-03. Officers of board — Power to administer oaths.

At the first meeting of the board subsequent to the thirty-first day of March in each odd-numbered year, the members of the board shall elect a president and secretary-treasurer. The president must be a member of the board. The secretary-treasurer may not be a member of the board but must be a practical abstracter engaged in the business of making abstracts of title to real estate. The president and secretary-treasurer may administer oaths.

Source:

S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0103.

43-01-04. Compensation.

A member of the board is entitled to receive compensation in an amount fixed by the board for each day or portion of a day the member is actually engaged in the performance of official duties and such mileage reimbursement as is provided for in section 54-06-09. In addition thereto, the member is entitled to reimbursement for actual and necessary expenses in the amounts provided by law for state officers in section 44-08-04. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0104; S.L. 1971, ch. 510, § 5; 1981, ch. 436, § 1; 1985, ch. 474, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-01-05. Duties of board — Power to make rules — Seal.

The board shall carry out the purposes and enforce the provisions of this chapter and shall make such rules and regulations as are necessary for the performance of its duties. The board shall have a seal.

Source:

S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0105.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-01-06. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1925, ch. 1, § 4; 1925 Supp., § 3099a4; R.C. 1943, § 43-0106; S.L. 1963, ch. 346, § 36; 1973, ch. 403, § 26; 1975, ch. 466, § 28; 1995, ch. 350, § 28.

43-01-07. Moneys of board — How disbursed.

Moneys collected for the board under this chapter must be kept by the secretary-treasurer and disbursed only on warrants signed by the president and the secretary-treasurer. All expenses incident to the examinations required under this chapter, the expenses of preparing and issuing certificates and licenses, the reimbursement of board members’ expenses, and stationery, printing, clerk hire, and incidental office expenses must be paid by the board from the fees collected by it, and no expense incurred under this chapter may be a charge against the funds of this state. No part of the funds administered by the board revert to the general fund of this state. At the end of the person’s term, the secretary-treasurer shall account to the person’s successor for any moneys remaining in the person’s hands.

Source:

S.L. 1925, ch. 1, § 4; 1925 Supp., § 3099a4; R.C. 1943, § 43-0107; S.L. 1985, ch. 474, § 2.

43-01-08. Records of board.

The board shall keep a register wherein it shall enter the name of each applicant for registration under the provisions of this chapter, with the applicant’s place of residence and such other information as may be appropriate, and the board shall cause to be entered therein the action taken upon the application and the date upon which a certificate of registration was issued or the application denied.

Source:

S.L. 1925, ch. 1, § 6; 1925 Supp., § 3099a6; S.L. 1929, ch. 1, § 3; R.C. 1943, § 43-0108.

43-01-09. Requirements of abstracter of title — Records — Certificate of registration bond or liability policy.

Before any person, firm, corporation, or limited liability company may engage in the business of making and compiling abstracts of title to real estate within this state, the person or it shall:

  1. Have and maintain in such business a complete tract index and all instruments of record in the office of the recorder in and for the county in which the person or it is engaged in business, or shall have been engaged in good faith in the preparation of such records for not less than six months;
  2. Obtain a certificate of authority as is required by this chapter;
  3. File the bond or abstracter’s liability policy required under section 43-01-11; and
  4. Have in charge of such business a registered abstracter, as defined by this chapter.

Source:

S.L. 1889, ch. 1, § 1; R.C. 1895, § 1774; R.C. 1899, § 1774; S.L. 1905, ch. 2, § 1; R.C. 1905, § 2231; S.L. 1907, ch. 1, § 1; 1911, ch. 329, § 1; 1913, ch. 1, § 1; C.L. 1913, § 3090; S.L. 1925, ch. 1, § 1; 1925 Supp., § 3099a1; S.L. 1929, ch. 1, § 1; R.C. 1943, § 43-0109; S.L. 1953, ch. 264, § 1; 1957 Supp., § 43-0109; S.L. 1993, ch. 54, § 106; 2001, ch. 120, § 1; 2007, ch. 356, § 1.

Collateral References.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-10. Certificate of registration — Application — Examination — Fee.

Any person, firm, corporation, or limited liability company desiring to obtain a certificate of authority under subsection 2 of section 43-01-09 shall make application therefor to the board and shall pay to the secretary-treasurer thereof an examination fee not exceeding the actual cost of the applicant’s examination by the board. The application must be upon a form prepared by the board and must contain such information as may be desired by it. The board shall fix the date and place for the examination of the applicant and shall give the applicant notice thereof by mail. The applicant shall appear at the time and place specified in the notice, and the board shall examine the applicant under such rules as it may prescribe. If the application is made by a firm, corporation, or limited liability company, one of the members, officers, or managers thereof shall take the examination.

  1. Registered abstracters, within the meaning of the chapter, shall comprise all persons who shall, upon the passage of this chapter, be in charge, either individually or jointly with other persons, of the abstract office which is the holder of a valid and subsisting certificate of authority as provided by this chapter and who shall obtain a certificate of registration as hereinafter provided, or persons who shall be granted certificates of registration by the board after passage of this chapter.
  2. Any person desiring to obtain a certificate of registration under this chapter shall make application to the board and shall pay to the secretary-treasurer of the board an examination fee fixed by the board not exceeding one hundred dollars except as hereinafter provided. Such application must be upon a form to be prepared by the board and to contain such information as may be desired by it. Thereupon the board shall fix a date and place for the examination of such applicant, of which notice must be given to applicant by mail, who shall appear at such meeting. Whereupon the board shall proceed to examine such applicant or applicants under such rules as may be adopted by the board.
  3. Any person, who, on July 1, 1953, is in charge, either individually or jointly with other persons, of an abstract office which is the holder of a valid and subsisting certificate of authority provided by subsection 2 of section 43-01-09 and who shall make application to the board prior to the expiration of said certificate of authority shall upon the payment of a fee fixed by the board not exceeding one hundred dollars be issued a certificate of registration, without examination, under such rules as may be provided by said board.
  4. The certificate of registration issued by the board must recite that the holder has complied with this chapter relating to examination or otherwise, and entitles the holder of the certificate of registration to take charge of any abstract office in any county in this state holding a certificate of authority under this chapter. Certificates of registration must be issued upon the payment of a fee fixed by the board not exceeding one hundred dollars and are valid for one year from the date of issuance but must be renewed annually by the board upon application within thirty days before the expiration of the registration upon a payment of a fee fixed by the board not exceeding one hundred dollars to the secretary-treasurer of the board. The board may issue temporary certificates of registration in its discretion. After August 1, 1993, an applicant for renewal of a registration shall include with the application a report of any continuing education courses attended by the applicant during the previous year. The board shall adopt rules to establish and administer continuing education requirements.
  5. Said board shall keep a register, wherein it shall enter the names of all applications for registration, and for certificates of authority, with their place of business and such other information as may be deemed appropriate, including the action taken by said board thereon, and the dates upon which certificates of registration and certificates of authority are issued.

Source:

S.L. 1889, ch. 1, § 2; R.C. 1895, § 1775; R.C. 1899, § 1775; R.C. 1905, § 2232; S.L. 1911, ch. 329, § 2; C.L. 1913, § 3091; S.L. 1925, ch. 1, § 5; 1925 Supp., § 3099a5; S.L. 1929, ch. 1, § 2; R.C. 1943, § 43-0110; S.L. 1953, ch. 264, § 2; 1957 Supp., § 43-0110; S.L. 1981, ch. 436, § 2; 1985, ch. 474, § 3; 1987, ch. 510, § 1; 1993, ch. 54, § 106; 1993, ch. 415, § 1.

43-01-10.1. Conviction not bar to certification — Exceptions.

Conviction of an offense shall not disqualify a person, firm, corporation, or limited liability company from certification under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as an abstracter or that, following conviction of an offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 12; 1993, ch. 54, § 106.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04(19).

43-01-11. Bonds or liability policy — Deductible policy permitted.

Before a certificate of authority may be issued, the applicant therefor shall file with the secretary-treasurer of the board a surety bond in favor of the state, or an abstracter’s liability policy to be approved by the board as to form, sufficiency, and surety thereof and written by a company authorized to write such insurance in this state, in a penal sum or limit of liability equal to ten thousand dollars for each ten thousand inhabitants, or major fraction thereof, residing in the county in which the applicant’s office is maintained, as shown by the last official federal or state census preceding the filing of the bond or abstracter’s liability policy. Such bond, or abstracter’s liability policy, however, may not be less than one hundred thousand dollars. The bond or liability policy must be conditioned for the payment by the abstracter of any liability imposed upon the abstracter by law for damages arising from any claim against the abstracter that may be sustained by or that accrues to any person by reason or on account of any negligent act, error, or omission in any abstract or certificate of title, or continuation thereof, made and issued by the abstracter. All surety bonds, liability policies, and evidence of annual renewal of the bonds and policies must be filed with the secretary-treasurer of the board. All abstracters’ liability policies must be endorsed to provide that cancellation cannot be effected by either the abstracter or the insurance company without ten days’ written notice to the abstracters’ board of examiners. It is permissible under this section to file an abstracter’s liability policy in the deductible form, provided that the deductible provision may not exceed ten thousand dollars.

Source:

S.L. 1889, ch. 1, § 1; R.C. 1895, § 1774; R.C. 1899, § 1774; S.L. 1905, ch. 2, § 1; R.C. 1905, § 2231; S.L. 1907, ch. 1, § 1; 1911, ch 329, § 1; 1913, ch. 1, § 1; C.L. 1913, § 3090; S.L. 1925, ch. 1, §§ 7, 8; 1925 Supp., §§ 3099a7, 3099a8; R.C. 1943, § 43-0111; S.L. 1953, ch. 264, § 3; 1957 Supp., § 43-0111; S.L. 1969, ch. 390, § 2; 1981, ch. 436, § 3; 1985, ch. 474, § 4; 1987, ch. 510, § 2.

Cross-References.

Limitation of action against abstracter, see N.D.C.C. § 28-01-45.

Notes to Decisions

Liability Arises out of Contract.

Statute requiring bond to be conditioned for payment of “any and all damages” merely enlarged class to which abstracter was liable and did not affect nature of liability which remained a liability on contract, not in tort. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15, 1945 N.D. LEXIS 81 (N.D. 1945).

DECISIONS UNDER PRIOR LAW

Accrual of Right of Action.

Right of action on abstracter’s bond accrued when the mistake was made and the abstract delivered, and not from the time the damage accrued; liability was premised on contract, not tort, and thus was governed by six-year limitation on contract actions. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15 (1943), decided prior to enactment of section 28-01-45.

Collateral References.

Duty and liability of abstracter to employer respecting matters to be included in abstract, 28 A.L.R.2d 891.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-12. Board may require additional security on abstracter’s bond.

The board, upon thirty days’ notice, may require any person, firm, corporation, or limited liability company holding a certificate of authority to furnish additional bond or additional abstracter’s liability coverage as to the board seems proper, and to show cause why any bond or abstracters’ liability policy filed with it should not be held and declared insufficient and invalid.

Source:

S.L. 1889, ch. 1, § 3; R.C. 1895, § 1777; R.C. 1899, § 1777; R.C. 1905, § 2234; S.L. 1911, ch. 329, § 4; C.L. 1913, § 3093; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0112; S.L. 1953, ch. 264, § 4; 1957 Supp., § 43-0112; S.L. 1993, ch. 54, § 106.

43-01-13. Seal of abstracter.

Any person, firm, corporation, or limited liability company furnishing abstracts of title to real property under the provisions of this chapter shall have a seal which has stamped on it the name and location of such person, firm, corporation, or limited liability company. An impression of the seal shall be deposited with the secretary-treasurer of the board before the certificate of registration is issued. The seal shall be affixed to every abstract or certificate of title issued by such person, firm, corporation, or limited liability company.

Source:

S.L. 1889, ch. 1, § 8; R.C. 1895, § 1782; R.C. 1899, § 1782; R.C. 1905, § 2239; C.L. 1913, § 3098; S.L. 1925, ch. 1, § 11; 1925 Supp., § 3099a11; R.C. 1943, § 43-0113; S.L. 1993, ch. 54, § 106.

43-01-14. Certification of authority — Fee — Renewal.

A certificate of authority must be issued to an applicant who successfully passes the examination of the board and complies with the other provisions of this chapter, upon the payment of the registration fee fixed by the board not exceeding one hundred dollars, which must be in addition to the examination fee. A certificate is valid for five years after the date thereof. A certificate must be renewed by the board upon application, made within thirty days prior to the expiration date, accompanied by payment of a fee fixed by the board not exceeding one hundred dollars and an affidavit that the applicant has and maintains in the applicant’s business a complete tract index and all instruments of record in the office of the recorder in and for the county in which the applicant has the applicant’s place of business or has been engaged in good faith in the preparation of such records for not less than six months.

Source:

S.L. 1925, ch. 1, § 6; 1925 Supp., § 3099a6; S.L. 1929, ch. 1, § 3; R.C. 1943, § 43-0114; S.L. 1953, ch. 264, § 5; 1957 Supp., § 43-0114; S.L. 1981, ch. 436, § 4; 1985, ch. 474, § 5; 2001, ch. 120, § 1; 2007, ch. 356, § 2.

43-01-15. Authority and duty of abstracter under certificate.

The certificate of authority shall authorize the person, firm, corporation, or limited liability company named therein to engage in and carry on the business of an abstracter of real estate titles in the county in which the abstracter’s place of business is located and for that purpose to have access during ordinary office hours to the offices of any county or of the state and to make such memoranda or notations from the records thereof as may be necessary for the purpose of making such abstracts of title. Any person, firm, corporation, or limited liability company holding a certificate shall furnish or continue an abstract of title to any tract of land in the county, when requested to do so, on payment of the fees provided in this chapter.

Source:

S.L. 1889, ch. 1, § 2; R.C. 1895, § 1776; R.C. 1899, § 1776; R.C. 1905, § 2233; S.L. 1911, ch. 329, § 3; C.L. 1913, § 3092; S.L. 1925, ch. 1, § 8; 1925 Supp., § 3099a8; R.C. 1943, § 43-0115; S.L. 1953, ch. 264, § 6; 1957 Supp., § 43-0115; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Contractual Relationship.

The relationship between an abstracter and one who employs him to furnish an abstract of title to land is one of contract. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15, 1945 N.D. LEXIS 81 (N.D. 1945).

Duty of Abstracter.

An abstracter is not called on for professional opinions as to any of the matters relating to a title. It is his duty to set forth the facts relating to the title as shown by the records. Morin v. Divide County Abstract Co., 48 N.D. 214, 183 N.W. 1006, 1921 N.D. LEXIS 25 (N.D. 1921).

Collateral References.

Duty and liability of abstracter to employer respecting matters to be included in abstract, 28 A.L.R.2d 891.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-15.1. Surface abstracts and mineral abstracts to be furnished upon request — Zoning and subdivision exclusion upon request.

An abstracter shall furnish an abstract of title to the surface of any tract of land, when requested to do so, omitting therefrom all instruments of transfer or conveyance of mineral rights, royalties, and other mineral interests except instruments which sever mineral rights or royalties from surface rights. In addition to such surface abstract, an abstracter shall, when requested to do so, furnish a list showing the names of the grantor and grantee and the recording data of all instruments in the chains of title which transfer or convey mineral rights, royalties, or other mineral interests and which are not included in the surface abstract. For each instrument searched and listed, but not included in the surface abstract, an abstracter may charge a fee not to exceed three dollars. When requested to do so, an abstracter shall furnish a mineral abstract of any chain of title to the minerals of any tract of land which shall consist of the instrument severing the mineral rights or royalties from the surface rights and include all instruments of transfer or conveyance of mineral rights, royalties, and other mineral interests. If requested, such mineral abstract may be combined with a surface abstract of all instruments affecting title to the tract of land to and including the instrument severing the mineral rights, royalties, or other mineral interests being abstracted. Further, when requested to do so, an abstracter shall omit zoning and subdivision ordinances but shall note and exclude them from the abstract of title. An abstracter may charge a per entry fee under section 43-01-18 for each omitted zoning and subdivision ordinance.

Source:

S.L. 1953, ch. 266, § 1; R.C. 1943, 1957 Supp., § 43-01151; S.L. 1985, ch. 475, § 1; 1993, ch. 416, § 1; 2005, ch. 356, § 1; 2015, ch. 285, § 1, effective August 1, 2015.

43-01-16. Cancellation or denial of certificate — Discipline.

The board, after receiving a written and signed complaint alleging a violation of any ground for discipline under this section and upon thirty days’ notice, may require any person, firm, corporation, or limited liability company holding a certificate of authority, or any person holding a certificate as a registered abstracter, to show cause why the same should not be canceled or other disciplinary measures taken. The board may deny an application for a certificate of authority or a certificate of registration for any reason that a certificate of authority or a certificate of registration may be canceled or disciplinary measures taken. A certificate of authority or certificate of registration may be canceled or disciplinary measures taken, however, only for one or more of the following reasons:

  1. Violation of the provisions of this chapter or the board’s administrative rules by the holder.
  2. If the holder thereof has been convicted of an offense determined by the board to have a direct bearing upon the holder’s ability to serve the public as an abstracter, or if, following conviction of an offense, the board finds the holder is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. A finding by the board that the holder is guilty of habitual carelessness, inattention to business or unreasonable timeliness of service, or intoxication or the use of drugs to such an extent as to incapacitate the holder for business, including not preparing an abstract as requested under section 43-01-15.1.
  4. A finding by the board that the holder is guilty of fraudulent practices.
  5. A certificate of authority may be canceled, or other disciplinary measures taken, upon the failure of the holder thereof to provide additional security as provided by section 43-01-12, or upon failure to file an abstracter’s liability policy in lieu of any canceled policy, before such cancellation becomes effective, or a surety bond in place thereof.

The board may inspect an abstracter’s records to determine compliance with this chapter or rules adopted under this chapter. The board may adopt rules under chapter 28-32 addressing discipline of abstracters, including establishing standards for timeliness of service based on a presumed standard turnaround time of three weeks or less. If the certificate of authority is held by a firm, corporation, or limited liability company, the provisions of this section shall be applicable to the members, officers, or managers thereof. Disciplinary measures that the board may take include canceling or suspending a certificate of authority or certificate of registration, requiring additional education, establishing a mentor or monitor, restricting practice parameters, or imposing a monetary penalty of no greater than five hundred dollars for each violation. In addition, an individual or organization found in violation of the requirements of this section may be assessed costs, including attorney’s fees, by the board. An entity whose certificate of authority has been canceled or suspended must surrender all customer abstracts and pending orders to the board immediately upon being notified of the cancellation or suspension. The board shall take reasonable measures to contact the customers.

Source:

S.L. 1889, ch. 1, § 3; R.C. 1895, § 1777; R.C. 1899, § 1777; R.C. 1905, § 2234; S.L. 1911, ch. 329, § 4; C.L. 1913, § 3093; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0116; S.L. 1953, ch. 264, § 7; 1957 Supp., § 43-0116; S.L. 1977, ch. 130, § 13; 1993, ch. 54, § 106; 2005, ch. 356, § 2.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04(19).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-01-17. Appeal from cancellation of certificate.

Upon the denial of an application for a certificate of authority, or an applicant for a certificate of registered abstracter, or upon the cancellation of either a certificate of authority or a certificate of registered abstracter, the applicant or the holder thereof may appeal from the decision of the board to the district court. Such appeal must be taken by the service upon the secretary-treasurer of the board, within thirty days after notice of the decision has been served, of a notice of appeal and an appeal bond in the sum of two hundred fifty dollars. The appeal must come on for hearing at the next regular term of the district court in the county in which the applicant or certificate holder has a place of business or residence within the state of North Dakota.

Source:

S.L. 1889, ch. 1, § 4; R.C. 1895, § 1778; R.C. 1899, § 1778; R.C. 1905, § 2235; C.L. 1913, § 3094; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0117; S.L. 1953, ch. 264, § 8; 1957 Supp., § 43-0117.

43-01-18. Fees chargeable by abstracter.

An abstracter may charge no more than the following fees for making and certifying to an abstract:

  1. For each entry on an abstract or continuation of an entry on an abstract, fifteen dollars.
  2. For a complete certification covering the records of the several county offices, one hundred fifty dollars.
  3. For a certification covering lands in excess of one quarter section [64.75 hectares] in the same abstract of title and for each quarter section [64.75 hectares] or portion of a quarter section in excess of one, an additional fee of fifteen dollars.
  4. For a certification covering premises in more than one block in any subdivision in the same abstract of title and for the premises in each additional block in excess of one, an additional fee of fifteen dollars.
  5. For each name searched for judgments, real estate taxes, bankruptcy proceedings, federal tax liens, and state tax liens, ten dollars and fees charged to the abstracter by a governmental agency or governmental entity.
  6. The fees as may be fixed by special statute.

Source:

S.L. 1889, ch. 1, § 7; R.C. 1895, § 1781; R.C. 1899, § 1781; R.C. 1905, § 2238; C.L. 1913, § 3097; S.L. 1925, ch. 1, § 9; 1925 Supp., § 3099a9; R.C. 1943, § 43-0118; S.L. 1949, ch. 285, § 1; 1953, ch. 264, § 9; 1957 Supp., § 43-0118; S.L. 1969, ch. 360, § 1; 1975, ch. 393, § 1; 1981, ch. 437, § 1; 1985, ch. 475, § 2; 1993, ch. 416, § 2; 2001, ch. 363, § 1; 2007, ch. 357, § 1; 2015, ch. 285, § 2, effective August 1, 2015.

43-01-19. County officers may certify abstracts.

This chapter does not prevent the recorder, county treasurer, or clerk of court from certifying to abstracts of title to lands from the records of their respective offices. Each officer, however, is liable on the officer’s official bond for the faithful performance of all acts performed by the officer as the abstracter. If the officer certifying the abstract is the clerk of court, the clerk shall charge and collect a fee as prescribed in section 27-05.2-03.

Source:

S.L. 1889, ch. 1, § 6; R.C. 1895, § 1780; R.C. 1899, § 1780; R.C. 1905, § 2237; C.L. 1913, § 3096; R.C. 1943, § 43-0119; S.L. 1985, ch. 336, § 15; 1999, ch. 107, § 9; 1999, ch. 278, § 69; 2001, ch. 120, § 1.

Cross-References.

Power of trust company to make, compile, and certify abstracts of title, see N.D.C.C. § 6-05-08, subsec. 7.

43-01-20. Penalty.

Any person making, compiling, or certifying to an abstract of title to real property in this state without first having complied with the provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1889, ch. 1, § 5; R.C. 1895, § 1779; R.C. 1899, § 1779; R.C. 1905, § 2236; C.L. 1913, § 3095; S.L. 1925, ch. 1, § 12; 1925 Supp., § 3099a12; R.C. 1943, § 43-0120; S.L. 1975, ch. 106, § 467; 1987, ch. 73, § 27.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-01-21. Abstract prima facie evidence of title — When recorded.

If the records of deeds, mortgages, liens, judgments, and instruments of like nature in any county have been lost or destroyed, the abstract prepared by a regularly bonded abstracter of said county must be deemed prima facie evidence of title, and such regularly certified abstract of title may be recorded as other instruments are recorded.

Source:

S.L. 1907, ch. 2, § 1; C.L. 1913, § 5547; R.C. 1943, § 43-0121.

Cross-References.

Admissibility of evidence of contents of lost writing, N.D.R.Ev. 1004.

43-01-22. Abstract prepared by regularly bonded abstracter is evidence.

Abstracts prepared by an official abstracter must be received as evidence in all courts and are prima facie evidence in all courts and places of the facts stated therein.

Source:

S.L. 1953, ch. 265, § 1; R.C. 1943, 1957 Supp., § 43-0122.

Notes to Decisions

Map Attached to Abstract.

A map drawn by the abstracter and attached to the abstract of title, but not certified to as an entry contained in the abstract is not a part of the official abstract of title and is not admissible in evidence. City of Jamestown v. Miemietz, 95 N.W.2d 897, 1959 N.D. LEXIS 78 (N.D. 1959).

43-01-23. Temporary authority of an abstracter to act in an additional county.

  1. If it appears to the board that there is no abstracter authorized to engage in and carry on the business of an abstracter of real estate titles in a county or that there is an authorized abstracter in a county who is unable to perform the duties of an abstracter due to death, disability, a disaster or emergency, or disciplinary action, the board may authorize an individual or organization having a certificate of authority and certificate of registration to operate in another county to operate in the county having no abstracter through the issuance of a temporary certificate of authority. The board may not charge an abstracter for the temporary certificate of authority. The board may require additional security than provided under section 43-01-11. The abstracter operating under the temporary certificate of authority is not required to have a complete tract index and all instruments of record in the office of the recorder in and for the county in which the abstracter is temporarily engaged in business, nor need the abstracter have been engaged in the preparation of such records. The temporary certificate of authority may not exceed such time as the board has determined an abstracter having a regular certificate of authority and certificate of registration is able to engage in and carry on the business of an abstracter of real estate titles in the county, but the abstracter holding the temporary certificate of authority may complete any work already engaged. The abstracter having a temporary certificate of authority may seek to operate in the county on a regular basis through compliance with all statutory requirements.
  2. The board may establish a fund to provide for additional expenses of an abstracter operating under a temporary certificate of authority. The fund may be paid for by an additional fee fixed by the board of no more than fifty dollars per year for each certificate of registration. The fund may not exceed five thousand dollars. The board may pay the expenses, including mileage, meals, and lodging, of an abstracter operating under a temporary certificate of authority at the rates established for state employees on official business.

Source:

S.L. 2005, ch. 356, § 3; 2007, ch. 356, § 3.

43-01-24. Utility easement documentation abstracts upon request.

Upon request, an abstracter shall furnish an abstract to title to the surface of any tract of land omitting documents that affect utility easements, except for the initial document severing the interest from the surface and a document limiting, modifying, or releasing the interest. In addition and upon request, an abstracter shall furnish a list showing the names of the grantor and grantee and the recording data of all related documents pertaining to a utility easement which are not included in the surface abstract. For each instrument searched and listed, but not included in the surface abstract, an abstracter may charge a fee of up to one dollar and fifty cents.

Source:

S.L. 2009, ch. 356, § 1.

CHAPTER 43-02 Accountants [Repealed]

[Repealed by S.L. 1975, ch. 394, § 12]

CHAPTER 43-02.1 Public Accountancy Act [Repealed]

[Repealed by S.L. 1993, ch. 417, § 20]

CHAPTER 43-02.2 Accountants

43-02.2-01. Purpose.

It is the policy of this state, and the purpose of this chapter, to promote the reliability of information that is used for guidance in financial transactions or for accounting for or assessing the financial status or performance of commercial, noncommercial, and governmental enterprises. Public interest requires that persons professing special competence in accountancy or offering assurance as to the reliability or fairness of presentation of such information have demonstrated or maintained their qualifications to do so, and that persons who have not demonstrated and maintained such qualifications, including certificate holders not in public practice, not be permitted to hold themselves out as having such special competence or to offer such assurance. Public interest requires that the conduct of persons licensed as having special competence in accountancy be regulated in all aspects of their professional work. Public interest requires that a public authority competent to prescribe and assess the qualifications and to regulate the conduct of practitioners of public accountancy and certificate holders not in public practice be established and that the use of titles which are likely to mislead the public as to the status or competence of the persons using such titles be prohibited.

Source:

S.L. 1993, ch. 417, § 2; 1999, ch. 372, § 1.

Note.

Section 1 of chapter 417, S.L. 1993 provides:

“This Act may be cited as the ‘Accountancy Act of 1993.’”

Collateral References.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-02. Definitions.

As used in this chapter, unless the context requires otherwise:

  1. “Board” means the state board of accountancy.
  2. “Certificate” means a certificate as “certified public accountant” issued under section 43-02.2-04 or provisions of prior law, or a corresponding certificate as certified public accountant issued after examination under the law of any other state.
  3. “Client” means a person or entity that agrees with a licensee to receive any professional service other than an employer-employee relationship.
  4. “Firm” means a sole proprietorship, a corporation, a partnership, or any combination thereof, or any other entity permitted by law.
  5. “Licensee” means the holder of a certificate, license, or permit issued under this chapter or prior law.
  6. “NASBA national qualification appraisal service” means the section of the national association of state boards of accountancy that either reviews the CPA licensure requirements of its member jurisdictions to determine which CPA licensure requirements are substantially equivalent to the licensure requirements of the Uniform Accountancy Act or evaluates the credentials of individuals who are licensed in jurisdictions that are not substantially equivalent to determine their individual substantial equivalency.
  7. “Permit” means a permit to practice public accountancy issued under section 43-02.2-06 or 43-02.2-07, prior law, or corresponding provisions of the laws of other states.
  8. “Practice of” or “practicing” public accountancy means the performance or the offering to perform by a person or firm holding out to the public as a licensee, for a client or potential client, services involving the use of accounting or auditing skills including the issuance of reports on financial statements, but not including management advisory, financial advisory, or consulting services, bookkeeping services, or the preparation of tax returns or the furnishing of advice on tax matters unless provided by a firm of certified public accountants or licensed public accountants.
  9. “Practice privilege” means the privilege for a person to practice public accountancy described in, and subject to the conditions contained in, subsection 1 of section 43-02.2-04.1.
  10. “Practice review” means a study, appraisal, or review of one or more aspects of the professional work of a firm in the practice of public accountancy, by a person or persons who hold certificates and are in the practice of public accounting and who are not affiliated with the person or firm being reviewed.
  11. “Principal place of business” means the office location designed by the licensee for purposes of substantial equivalence and reciprocity.
  12. “Professional” means arising out of or related to the specialized knowledge or skills associated with certified public accountants or licensed public accountants.
  13. “Report”, when used with reference to financial statements, means an opinion, report, or other form of language that states or implies assurance as to the reliability of any financial statements and that also includes or is accompanied by any statement or implication that the person or firm issuing it has special knowledge or competence in accounting or auditing. A statement or implication of special knowledge or competence may arise from use by the issuer of the report of names or titles indicating that the issuer is an accountant, auditor, or is in the business of accounting, or from the language of the report. “Report” includes any form of language that disclaims an opinion when the form of language is conventionally understood to imply any positive assurance as to the reliability of the financial statements referred to or special competence on the part of the person or firm issuing such language. “Report” includes any other form of language that is conventionally understood to imply such assurance or such special knowledge or competence.
  14. “Rule” means any rule, regulation, or other written directive of general application duly adopted by the board.
  15. “State” means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands.
  16. “Substantial equivalency”, as used in section 43-02.2-04, pertaining to certification by reciprocity, and in section 43-02.2-04.1, pertaining to the practice privilege, is a determination by the board or its designee that another jurisdiction’s education, examination, and experience requirements are comparable to or exceed that of the Uniform Accountancy Act, or that an individual’s education, examination, and experience qualifications are comparable to or exceed that of the Uniform Accountancy Act. In ascertaining substantial equivalency as used in this chapter, the board shall take into account the qualifications without regard to the sequence in which experience, education, or examination requirements were attained.

Source:

S.L. 1993, ch. 417, § 3; 1999, ch. 372, § 2; 2009, ch. 357, § 1.

43-02.2-03. State board of accountancy.

  1. The state board of accountancy consists of five members appointed by the governor. Four members of the board must be residents of this state who hold certified public accountant certificates issued under the laws of this state and one member of the board must be a resident of this state who is a licensed public accountant under the laws of this state. When the number of licensed public accountants in this state drops below twenty-five, the licensed public accountant member requirement ceases to apply, except that the licensed public accountant then serving on the board may complete that term of office and thereafter the board shall consist of five certified public accountants. The terms of office must be arranged so that only one term expires each year on June thirtieth. Successor board member appointments are for terms of five years. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until a successor is appointed and qualified. A vacancy on the board must be filled by appointment by the governor from a list of at least three nominees submitted by the appropriate nominating committee. Any member of the board whose certificate is revoked or suspended automatically ceases to be a member of the board. The governor may remove any member of the board for neglect of duty or other just cause after a hearing. No person who has served two complete terms is eligible for reappointment, but appointment to fill an unexpired term may not be considered a complete term for this purpose.
  2. At its first meeting after June thirtieth in each year, the board shall organize by electing one of its members as president, one as secretary, and one as treasurer. The offices of secretary and treasurer may be held by one person. A majority of the board constitutes a quorum.
  3. A member of the board is entitled to compensation in an amount to be fixed by the board for each day or portion of a day spent in the discharge of duties, mileage as provided under section 54-06-09, and reimbursement for actual and necessary expenses incurred in the discharge of official duties.
  4. All expenses incident to examinations under this chapter, expenses of preparing and issuing certificates and permits, travel expenses and other allowable expenses of the members of the board, and stationery, printing, clerk hiring, and other office expenses must be paid by the board from the fees collected by it, and no expense incurred under this chapter may be a charge against the funds of this state. Funds administered by the board may not revert to the state general fund.
  5. The board has the following powers:
    1. To administer oaths to all applicants or persons appearing before it in respect to investigations, examinations, or the issuance of certified public accountant certificates.
    2. To conduct investigations and examinations and issue certificates to properly qualified applicants and permits to properly qualified firms.
    3. To determine the qualifications of all applicants.
    4. To employ and establish the salary of an executive director and such other personnel as it deems necessary in administration and enforcement of this chapter. The board may appoint committees or persons, including counsel, to advise or assist the board.
    5. To take all action that is necessary and proper to effectuate the purposes of this chapter, including the power to sue and be sued in its official name as an agency of this state, to issue subpoenas to compel the attendance of witnesses and the production of documents, to administer oaths, to take testimony, to cooperate with appropriate authorities in other states in investigations and enforcement concerning violations of this chapter and comparable laws of other states, and to receive evidence concerning all matters within its jurisdiction. In case of disobedience of a subpoena, the board may invoke the aid of any court in requiring the attendance and testimony of witnesses and the production of documentary evidence. The board, its members, and its agents are immune from personal liability for actions taken in good faith in the discharge of the board’s responsibilities.
    6. The board may adopt rules governing its administration and enforcement of this chapter and the conduct of licensees, including:
      1. Rules governing the board’s meetings and the conduct of its business;
      2. Rules of procedure governing the conduct of investigations and hearings by the board;
      3. Rules specifying the educational and experience qualifications required for the issuance of certificates under this chapter and the continuing education required for renewal of certificates and licenses;
      4. Rules of conduct including rules relating to independence, integrity, and objectivity; competence and technical standards; responsibilities to the public; and responsibilities to clients;
      5. Rules specifying actions and circumstances that must be deemed to constitute holding oneself out as a licensee in connection with the practice of public accountancy;
      6. Rules governing the manner and circumstances of use of the titles “certified public accountant”, “CPA”, “licensed public accountant”, and “LPA”;
      7. Rules concerning substantial equivalency;
      8. Rules regarding practice reviews that may be required to be performed under this chapter; and
      9. Other rules the board deems necessary or appropriate for implementing this chapter.

Source:

S.L. 1993, ch. 417, § 4; 1999, ch. 372, § 3.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Oath of civil officers, see N.D.C.C. § 44-01-05.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

Collateral References.

Validity, construction, and application of statute or regulation restricting the use of terms such as “accountant,” “public accountant,” or “certified public accountant,” 4 A.L.R.4th 1201.

43-02.2-04. Certified public accountants.

  1. The board shall grant the certificate of “certified public accountant” to any person of good moral character who meets the requirements of this section.
  2. For the purposes of this chapter, good moral character means the lack of a history of dishonest or felonious acts. The board may refuse to grant a certificate on the grounds of failure to satisfy this requirement only if there is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a licensee and if the finding by the board of lack of good moral character is supported by clear and convincing evidence. When an applicant is found to be unqualified for a certificate because of a lack of good moral character, the board shall furnish the applicant a statement containing the findings of the board, a complete record of the evidence upon which the determination was based, and a notice of the applicant’s right of appeal.
  3. The board shall grant or renew certificates to persons who make application and demonstrate that their qualifications are in accordance with the following:
    1. The board shall issue a certificate to a holder of a certificate, license, or permit issued by another state, upon a showing that the applicant is eligible under the substantial equivalency standard set out in subsection 1 of section 43-02.2-04.1. An application under this section may be made through the NASBA qualification appraisal service.
    2. With regard to applicants that do not qualify for reciprocity under the substantial equivalency standard set out in subdivision a, the board shall issue a certificate to a holder of a certificate, license, or permit issued by another state upon a showing that:
      1. The applicant passed the uniform CPA examinations;
      2. The applicant had four years of experience of the type described in subsection 14 or meets comparable requirements prescribed by the board by rule, after passing the examination upon which the applicant’s certificate was based and within ten years immediately preceding the application; and
      3. If the applicant’s certificate, license, or permit was issued more than four years prior to the application for issuance of an initial certificate under this section, that the applicant has fulfilled the requirements of continuing professional education that would have been applicable under subsection 15.
    3. The applicant shall pay the applicable fee.
    4. An individual who establishes that individual’s principal place of business in this state must obtain a certificate under this section.
  4. The board shall issue a certificate to a holder of a recognized accounting designation from a jurisdiction or organization outside of the United States, provided such jurisdiction or organization extends similar reciprocity to the certificate holders of this state, and upon a showing to the board’s satisfaction that the applicant:
    1. Meets the good moral character requirement of subsection 2;
    2. Meets the substantial equivalent of the education requirements of subsection 5 and the experience requirements of subsection 14 at the time of application, or at the time of the issuance of the designation by the other jurisdiction or organization met the education and experience requirements then applicable in this state;
    3. Has completed examinations generally equivalent to those prescribed under subsection 6;
    4. Has satisfactorily completed any additional examinations that the board prescribes; and
    5. Has paid the applicable fees.
  5. The education requirement for a certificate is as follows:
    1. Through December 31, 1999, a baccalaureate degree or its equivalent conferred by a college or university acceptable to the board, and an accounting concentration or equivalent as determined by board rule to be appropriate, or four years of public accounting experience on one’s own account or in the office of a public accountant in active practice, or in an accounting or auditing position with the government of the United States or a state.
    2. After December 31, 1999, at least one hundred fifty semester hours of college education including a baccalaureate or higher degree or its equivalent conferred by a college or university acceptable to the board, the total educational program to include an accounting concentration or equivalent as determined by board rule to be appropriate. An individual who on December 31, 1999, meets the requirements of subdivision a may obtain a certificate under subdivision a if the individual passes the examination in accordance with board rules before December 31, 2004.
  6. The examination required to be passed as a condition for the granting of a certificate must test the applicant’s knowledge of the subjects of accounting and auditing. The time for holding the examination must be fixed by the board and may be changed from time to time. The board may prescribe by rule the methods of applying for and conducting the examination, including methods for grading papers and determining a passing grade required of an applicant for a certificate provided that the board to the extent possible sees to it that the grading of the examination and the passing grade requirements are uniform with those applicable in all other states. The board may use all or any part of the uniform certified public accountant examination and advisory grading service of the American institute of certified public accountants and may contract with third parties to perform administrative services with respect to the examination it deems appropriate to assist it in performing its duties. The board may permit a candidate to take the examination if the board is satisfied that the candidate will complete the educational requirements of this section within six months after the candidate’s application to take the examination.
  7. An applicant must pass the examination provided for in subsection 6, as specified by rule, in order to qualify for a certificate.
  8. An applicant must be given credit for any and all sections of an examination passed in another state if such credit would have been given under then applicable requirements, if the applicant had taken the examination in this state.
  9. The board may in particular cases waive or defer any of the requirements of subsections 7 and 8 regarding the circumstances under which the examination must be passed, upon a showing that, by reason of circumstances beyond the applicant’s control, the applicant was unable to meet the requirement.
  10. The board may charge, or provide for a third party administering the examination to charge, each applicant a fee, in an amount prescribed by the board by rule, for examination or re-examination.
  11. A certificate of certified public accountant must be renewed each year, with renewal subject to payment of fees and any other requirements prescribed by the board.
  12. The board may require examination of other related subjects as specified by rule.
  13. Applicants for initial issuance or renewal of certificates under this section shall list in the applications all states and jurisdictions in which they have applied for or hold certificates or permits or other recognized accounting designation, and each holder of or applicant for a certificate under this section shall notify the board in writing, within thirty days after its occurrence, of any issuance, denial, revocation, or suspension of a certificate or permit or other recognized accounting designation by another state or jurisdiction.
  14. After December 31, 2000, an applicant for initial issuance of a certificate under this section shall show that the applicant has had one year of experience. This experience must include providing any type of service or advice involving the use of accounting, attest, management advisory, financial advisory, tax, or consulting skills. This experience must be verified and must meet any other requirements prescribed by the board by rule. This experience is acceptable if it was gained through employment in government, industry, academia, or public accounting. This experience requirement does not apply to those who received a certificate from this state prior to January 1, 2000.
  15. The board may require by rule, as a condition for granting and renewal of certificates under this section, that applicants show completion of continuing education meeting requirements of board rule. The continuing education rules may include provisions for exceptions and must include reasonable provision for an applicant who cannot meet the continuing education requirements due to circumstances beyond the applicant’s reasonable control.

Source:

S.L. 1993, ch. 417, § 5; 1999, ch. 372, § 4; 2009, ch. 357, § 2.

Collateral References.

Tax returns: construction and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Contracts: recovery back of money paid to unlicensed person required by law to have occupation or business license or permit to make contract, 74 A.L.R.3d 637.

Accountant’s malpractice liability to client, 92 A.L.R.3d 396.

Validity, construction, and application of statute or regulation restricting use of terms such as “accountant,” “public accountant,” or “certified public accountant” 4 A.L.R.4th 1201.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-04.1. Substantial equivalency.

  1. An individual whose principal place of business is not in this state shall have all the privileges of certificate holders and licensees of this state without the need to obtain a certificate or permit under section 43-02.2-04, if the individual holds a valid license as a CPA from any state that the NASBA national qualification appraisal service has verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act, or, if the individual’s license is not from any state which the NASBA national qualification appraisal service has verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act, that the individual has obtained from the NASBA national qualification appraisal service verification that such individual’s CPA qualifications are substantially equivalent to the CPA licensure requirements of the Uniform Accountancy Act. An individual who passed the uniform CPA examination and holds a valid license issued by any other state prior to January 1, 2012, may be exempt from the education requirement in the Uniform Accountancy Act for purposes of this section.
  2. Notwithstanding any other provision of law, an individual who offers or renders professional services, whether in person or by mail, telephone, or electronic means, under this section shall be granted practice privileges in this state and may use the title “CPA” or “certified public accountant” and no notice, fee, or other submission shall be provided by any such individual. Such an individual is subject to the requirements of subsection 3.
  3. Any individual licensee of another state exercising the privilege afforded under this section and the firm that employs that licensee hereby simultaneously consent, as a condition of the grant of this privilege:
    1. To the personal and subject matter jurisdiction and disciplinary authority of the board;
    2. To comply with this chapter and the board’s rules;
    3. That in the event the license from the state of the individual’s principal place of business is no longer valid, the individual will cease offering or rendering professional services in this state individually and on behalf of a firm; and
    4. To the appointment of the state board which issued the person’s license as the person’s agent upon whom process may be served in any action or proceeding by this board against the licensee.
  4. A licensee of this state offering or rendering services or using the licensee’s CPA title in another state is subject to disciplinary action in this state for an act committed in another state for which the licensee would be subject to discipline in the other state. The board shall investigate any complaint made by the board of accountancy of another state.

Source:

S.L. 1999, ch. 372, § 14; 2009, ch. 357, § 3.

43-02.2-05. Permits to practice — Individual. [Repealed]

Repealed by S.L. 1999, ch. 372, § 15.

43-02.2-06. Permits to practice — Firms.

  1. The board shall grant or renew permits to practice as a CPA or LPA firm to applicants that demonstrate their qualifications therefor in accordance with this subsection.
    1. The following must hold a permit issued under this subsection:
      1. Any firm with an office in this state practicing public accountancy as defined in subsection 8 of section 43-02.2-02; or
      2. Any firm with an office in this state that uses the title “CPA”, “LPA”, “CPA firm”, or “LPA firm”, or similar titles.
    2. A firm which is not subject to the requirements of subdivision a may perform professional services within the practice of public accountancy while using the title “CPA” or “CPA firm” in this state without a permit issued under this subsection only if:
      1. It performs such services through an individual with practice privileges under subsection 1 of section 43-02.2-04.1; and
      2. It can lawfully do so in the state where such individuals with practice privileges have their principal place of business.
  2. Permits must be issued and renewed on an annual basis. Applications for permits must be made in the form the board specifies. The board shall grant or deny any application no later than ninety days after the application is filed in proper form. If the applicant seeks the opportunity to show that issuance or renewal of a permit was mistakenly denied or if the board is not able to determine whether it should be granted or denied, the board may issue to the applicant a provisional permit, which expires ninety days after its issuance or when the board determines whether or not to issue or renew the permit for which application was made, whichever occurs first.
  3. An applicant for initial issuance or renewal of a permit to practice under this section must show that notwithstanding any other provision of law, a simple majority of the ownership of the firm, in terms of financial interests and voting rights, belongs to licensees of a state or other recognized jurisdiction and that all certified public accountants or licensed public accountants associated with the firm whose principal place of business is in this state and who perform professional services in this state hold a valid certificate or license issued by this state. The firm and its owners must comply with all board rules regarding ownership.
  4. An applicant for initial issuance or renewal of a permit to practice under this section is required to register each office of the firm within this state with the board.
  5. The board may charge a fee for each application for initial issuance or renewal of a permit under this section in an amount prescribed by the board by rule.
  6. Applicants for initial issuance or renewal of permits under this section shall in their applications list all states and jurisdictions in which they have applied for or hold permits to practice public accountancy or similar authorizations, and each holder of or applicant for a permit under this section shall notify the board in writing, within thirty days after its occurrence, of any change in the identities of partners, officers, or shareholders who work regularly within this state, any change in the number or location of offices within this state, any change in the identity of the persons in charge of such offices, and any issuance, denial, revocation, or suspension of a permit by any other state or jurisdiction.
  7. The board may require by rule, on either a uniform or a random basis, as a condition to renewal of permits under this section, that applicants undergo practice reviews conducted no more frequently than once every three years in such manner and producing such satisfactory result as the board specifies; provided that any such requirement must be adopted reasonably in advance of the time when it is first required to be met and must include reasonable provision for compliance by an applicant’s showing that it has undergone a satisfactory review performed for other purposes which was substantially equivalent to practice reviews generally required under this subsection and completion of such review was within the three years immediately preceding the renewal period.

Source:

S.L. 1993, ch. 417, § 7; 1999, ch. 372, § 5; 2009, ch. 357, § 4.

43-02.2-07. Licensed public accountants and firms of public accountants.

Persons who on July 1, 1993, hold licensed public accountant licenses issued under prior law of this state are entitled to have those licenses renewed provided that they fulfill all requirements for renewal under this section and subsections 13 and 15 of section 43-02.2-04. Firm licensees that hold valid permits to practice are entitled to engage in the practice of public accountancy to the same extent and with the same requirements as other holders of such permits and are entitled to use the designations “licensed public accountant” and “LPA”, but no other designation, in connection with the practice of public accountancy. Licensed public accountant licenses and firm permits must be renewed annually, with renewal subject to payment of fees and any other requirements prescribed by the board.

Source:

S.L. 1993, ch. 417, § 8; 1999, ch. 372, § 6.

Collateral References.

Tax returns: construction and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Liability of public accountant, 54 A.L.R.2d 324.

Contracts: recovery back of money paid to unlicensed person required by law to have occupation or business license or permit to make contract, 74 A.L.R.3d 637.

Accountant’s malpractice liability to client, 92 A.L.R.3d 396.

Validity, construction, and application of statute or regulation restricting use of terms, such as “accountant,” “public accountant,” or “certified public accountant,” 4 A.L.R.4th 1201.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-08. Appointment of secretary of state as agent.

Application by a person or a firm not a resident of this state for a certificate under section 43-02.2-04 or a permit to practice under section 43-02.2-06 constitutes appointment of the secretary of state as the applicant’s agent upon whom process may be served in any action or proceeding against the applicant arising out of any transaction or operation connected with or incidental to services performed within this state by the applicant.

Source:

S.L. 1993, ch. 417, § 9; 1999, ch. 372, § 7.

43-02.2-09. Enforcement against licensees.

  1. The board may revoke any certificate, license, practice privilege, or permit issued under this chapter or corresponding provisions of prior law; suspend any such certificate, license, practice privilege, or permit or refuse to renew any such certificate, license, practice privilege, or permit for a period of not more than five years; reprimand, censure, or limit the scope of practice of any licensee or holder of a practice privilege; impose an administrative fine not exceeding one thousand dollars; or place any licensee or holder of a practice privilege on probation, all with or without terms, conditions, and limitations, for any one or more of the following reasons:
    1. Fraud or deceit in obtaining a certificate, license, practice privilege, or permit;
    2. Cancellation, revocation, suspension, or refusal to renew a certificate, license, practice privilege, or permit in any other state or jurisdiction for any cause;
    3. Failure, on the part of a holder of a certificate, license, practice privilege, or permit, to maintain compliance with the requirements for issuance or renewal of such certificate, license, practice privilege, or permit or to report changes to the board under section 43-02.2-04, 43-02.2-06, or 43-02.2-07;
    4. Revocation or suspension of the right to practice before any state or federal agency;
    5. Dishonesty, fraud, or gross negligence in the performance of services as a licensee or in the filing or failure to file the licensee’s own income tax returns;
    6. Violation of any provision of this chapter or rule adopted by the board under this chapter;
    7. Violation of any rule of conduct adopted by the board under section 43-02.2-03;
    8. Conviction of a felony, or of any crime an element of which is dishonesty or fraud, under the laws of the United States, of this state, or of any other state if the acts involved would have constituted a crime under the laws of this state;
    9. Performance of any fraudulent act while holding a certificate, license, practice privilege, or permit issued under this chapter or prior law;
    10. Any conduct reflecting adversely upon the licensee’s fitness to perform services while a licensee; and
    11. Making any false or misleading statement or verification, in support of an application for a certificate, license, or permit filed by another.
  2. In lieu of or in addition to any remedy specifically provided in subsection 1, the board may require of a licensee either or both of the following:
    1. A practice review conducted as the board specifies.
    2. Satisfactory completion of continuing education programs the board specifies.
  3. In any proceeding in which a remedy provided by subsection 1 or 2 is imposed, the board may require the respondent licensee to pay the costs of the proceeding.

Source:

S.L. 1993, ch. 417, § 10; 1999, ch. 372, § 8; 2009, ch. 357, § 5.

Collateral References.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-02.2-10. Enforcement procedures — Investigations.

If this chapter authorizes the board to revoke, deny, or suspend the certificate, license, practice privilege, or permit of any licensee or holder of a practice privilege, the individual or firm has a right to a hearing before the board on such contemplated disciplinary action and has a right to appeal to the courts from the decision of the board on the hearing. All of the provisions of chapter 28-32 relating to proceedings before an administrative agency are applicable to and govern the notice of hearing, the hearing, and the right of appeal from the board’s decision. During the investigation of any complaint or other information suggesting violations of this chapter, the report of the investigating officer, the complaint, if any, the testimony and documents submitted in support of the complaint or gathered in the investigation, and the fact of the pending investigation must be treated as confidential information and may not be disclosed to any person except law enforcement authorities and, to the extent deemed necessary in order to conduct the investigation, the subject of the investigation, persons whose complaints are being investigated, and witnesses questioned in the course of the investigation.

Source:

S.L. 1993, ch. 417, § 11; 2009, ch. 357, § 6.

43-02.2-11. Reinstatement.

  1. If the board has suspended, refused to renew, or revoked a certificate, license, practice privilege, or a permit, the board may modify the suspension or reissue the certificate, license, practice privilege, or permit upon application in writing by the person or firm affected and for good cause shown and payment of a fee established by the board.
  2. The board shall specify by rule the manner in which applications for reinstatement must be made, the times within which they must be made, and the circumstances in which hearings on applications will be held.
  3. Before reissuing or terminating the suspension of a certificate, license, practice privilege, or permit under this section, the board may require the applicant to show successful completion of specified continuing education and may make the reinstatement conditional and subject to specified conditions, including satisfactory completion of a practice review conducted as specified by the board.

Source:

S.L. 1993, ch. 417, § 12; 1999, ch. 372, § 9; 2009, ch. 357, § 7.

43-02.2-12. Unlawful acts.

  1. A person or firm that is not a licensee or otherwise authorized to practice in this state under subsection 1 of section 43-02.2-04.1 or subdivision b of subsection 1 of section 43-02.2-06 may not practice or offer to practice public accountancy or issue a report on financial statements of any other person, firm, organization, or governmental unit. Individual licensees may not practice public accountancy unless they do so within a firm that holds a permit issued under this chapter or is otherwise exempt from the firm permit requirement. These prohibitions do not apply to an officer, partner, or employee of any firm or organization affixing the person’s name or signature to any statement or report in reference to the financial affairs of such firm or organization with any wording designating the position, title, or office that the signer holds therein, does not prohibit any act of a public official or employee in the performance of duties as such, and does not prohibit the performance by any persons of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services, and the preparation of financial statements without the issuance of reports thereon. This prohibition does not apply to transactions between manufacturing and sales organizations and their customers when accounting services accompany the sale of products provided that such accounting services are incidental and that any financial report made is clearly titled “unaudited financial report”.
  2. A person not holding a valid certificate or practice privilege issued under this chapter may not use or assume the title or designation “certified public accountant”, or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the person is a certified public accountant.
  3. A firm may not practice public accountancy or assume or use the title or designation “certified public accountant”, or the abbreviation “CPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the firm is a certified public accountant firm unless the firm holds a valid permit issued under this chapter or is otherwise exempt from the firm permit requirement.
  4. A person may not assume or use the title or designation “licensed public accountant” or the abbreviation “LPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the person is a licensed public accountant unless the person is registered as provided in section 43-02.2-07.
  5. A firm may not practice public accountancy, or assume or use the title or designation “licensed public accountant”, the abbreviation “LPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the firm is a licensed public accountant firm unless the firm holds a valid permit issued under this chapter or is otherwise exempt from the firm permit requirement.
  6. A person or firm not holding a valid certificate, license, practice privilege, or permit issued under this chapter or otherwise exempt from the firm permit requirement may not assume or use the title or designation “certified accountant”, “chartered accountant”, “enrolled accountant”, “licensed accountant”, “public accountant”, “registered accountant”, “accredited accountant”, or any other title or designation likely to be confused with the titles “certified public accountant” or “licensed public accountant”, or use any of the abbreviations “CA”, “LA”, “PA”, “RA”, “AA”, or similar abbreviation likely to be confused with the abbreviations “CPA” or “LPA”.
  7. A person or firm not holding a valid certificate, license, practice privilege, or permit issued under this chapter or otherwise exempt from such requirement may not assume or use any title or designation that includes the words “accountant”, “auditor”, or “accounting”, or other terms in any manner that implies such person or firm holds such a certificate, license, or permit or has special competence as an accountant or auditor. This subsection does not prohibit any officer, partner, or employee of any firm or organization from affixing the person’s name or signature to any reference to the financial affairs of such firm or organization with any wording designating the position, title, or office that the person holds and does not prohibit any act of a public official or employee in the performance of duties.
  8. A licensee may not use a professional or firm name or designation that is misleading. Names of one or more former partners or shareholders may be included in the name of a firm or its successor.
  9. This section does not apply to a person or firm holding a certification, designation, degree, or license granted in a foreign country entitling the holder to engage in the practice of public accountancy or its equivalent in that country, whose activities in this state are limited to the provision of professional services to persons or firms who are residents of, governments of, or business entities of the country in which the person or firm holds such entitlement. This subsection does not authorize issuing reports with respect to the financial statements of any other persons, firms, or governmental units in this state. A person or firm acting under the authority of this subsection may not use in this state any title or designation other than the one under which the person or firm practices in such country, followed by a translation of such title or designation into the English language, if it is in a different language, and by the name of such country.

Source:

S.L. 1993, ch. 417, § 13; 1999, ch. 372, § 10; 2009, ch. 357, § 8.

43-02.2-13. Injunctions against unlawful acts.

If as a result of an investigation, the board believes that any person or firm has engaged, or is about to engage, in any acts or practices which constitute or will constitute a violation of this chapter, the board may make application to the appropriate court for an order enjoining such acts or practices, and upon a showing by the board that such person or firm has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or other appropriate order must be granted by the court.

Source:

S.L. 1993, ch. 417, § 14.

43-02.2-14. Criminal penalties.

  1. If by reason of an investigation, the board has reason to believe that any person or firm has knowingly engaged in acts or practices that constitute a violation of this chapter, the board may bring its information to the attention of a state’s attorney or the attorney general or other appropriate law enforcement officer who may cause appropriate criminal proceedings to be brought.
  2. Any person or firm who knowingly violates any provision of section 43-02.2-12 is guilty of a class A misdemeanor.

Source:

S.L. 1993, ch. 417, § 15.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-02.2-15. Single act evidence of practice.

In any action brought under this chapter, evidence of the commission of a single act prohibited by this chapter is sufficient to justify a penalty, injunction, restraining order, or conviction, without evidence of a general course of conduct.

Source:

S.L. 1993, ch. 417, § 16; 1999, ch. 372, § 11.

43-02.2-16. Confidential communications.

Except by permission of the client engaging a licensee under this chapter, or the heirs, successors, or personal representatives of such client, a licensee or any partner, officer, shareholder, or employee of a licensee may not voluntarily disclose information communicated to the licensee by the client relating to and in connection with services rendered to the client by the licensee. Such information is deemed confidential but this section may not be construed as prohibiting the disclosure of information required to be disclosed by the standards of the profession in reporting on the examination of financial statements or as prohibiting disclosures in court proceedings, in investigations or proceedings under section 43-02.2-09 or 43-02.2-10, in ethical investigations conducted by private professional organizations, or in the course of practice reviews, or to other persons active in the organization performing services for that client on a need-to-know basis or to persons in the entity who need this information for the sole purpose of assuring quality control.

Source:

S.L. 1993, ch. 417, § 17; 1999, ch. 372, § 12.

43-02.2-17. Licensees’ working papers — Clients’ records.

  1. All statements, records, schedules, working papers, and memoranda made by a licensee or a partner, shareholder, officer, director, or employee of a licensee, incident to, or in the course of, rendering services to a client while a licensee, except the reports submitted by the licensee to the client and except for records that are part of the client’s records, are the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary. A statement, record, schedule, working paper, or memorandum may not be sold, transferred, or bequeathed, without the consent of the client or the client’s personal representative or assignee, to anyone other than one or more surviving partners or stockholders or new partners or stockholders of the licensee, or any combined or merged firm or successor in interest to the licensee. This section may not be construed as prohibiting any temporary transfer of workpapers or other material necessary in the course of carrying out practice reviews.
  2. A licensee shall furnish to a client or former client, upon request and reasonable notice:
    1. A copy of the licensee’s working papers, to the extent that such working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client; and
    2. Any accounting or other records belonging to, or obtained from or on behalf of, the client that the licensee removed from the client’s premises or received for the client’s account. The licensee may make and retain copies of such documents of the client when they form the basis for work done by the licensee.
  3. This section does not require a licensee to keep any workpaper beyond the period prescribed in any other applicable statute.

Source:

S.L. 1993, ch. 417, § 18; 1999, ch. 372, § 13.

43-02.2-18. Uniform statute of limitations.

    1. This section applies to all causes of action of the type specified in this section filed on or after August 1, 1993.
    2. This section governs any action based on negligence or breach of contract brought against any accountant, any partnership of accountants, any accounting corporation, or any other legal entity of accountants registered, licensed, or practicing in this state by any person or entity claiming to have been injured as a result of financial statements or other information examined, compiled, reviewed, certified, audited, or otherwise reported or opined on by the defendant accountant as a result of an engagement to provide public accounting services.
  1. An action covered by this section may not be brought in any court in this state unless the suit is commenced on or before the earlier of:
    1. Two years from the date the alleged act, omission, or neglect is discovered or should have been discovered by the exercise of reasonable diligence; or
    2. Six years after the service for which the suit is brought has been performed or the date of the initial issuance of the accountant’s report on the financial statements or other information, whichever comes first.

Source:

S.L. 1993, ch. 417, § 19.

CHAPTER 43-03 Architects and Landscape Architects

43-03-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Architect” means an individual who is registered as an architect under this chapter.
  2. “Board” means the state board of architecture and landscape architecture.
  3. “Landscape architect” means an individual who is registered as a landscape architect under this chapter.
  4. “Landscape architecture” does not include the practice of engineering and practice of professional engineering as defined under section 43-19.1-02.
  5. “Practice of architecture” means rendering or offering to render service to clients generally, including any one or any combination of the following practices or professional services: advice, consultation, planning, architectural design, drawings, and specifications; and general administration of the contract as the owner’s representative during the construction phase in which expert knowledge and skill are required in connection with the erection, enlargement, or alteration of any building, or the equipment, or utilities thereof, or the accessories thereto if the safeguarding of the public health, safety, or welfare is concerned or involved. The term includes the making of architectural plans and specifications for buildings.
  6. “Practice of landscape architecture” means rendering or offering to render service to clients generally, including any one or any combination of the following practices or professional services: advice, consultation, planning, landscape architectural design, drawings, and specifications; and general administration of the contract as the owner’s representative during the construction phase in which expert knowledge and skill are required in connection with landscape enhancement or landscape development, including the formulation of graphic or written criteria to govern the planning or design of land construction projects, production of overall site plans, landscape grading, and landscape drainage plans, planting plans, irrigation plans, and construction details if the safeguarding of the public health, safety, or welfare is concerned or involved.

Source:

R.C. 1943, § 43-0301; S.L. 1973, ch. 345, § 1; 2003, ch. 356, § 1; 2009, ch. 358, § 1.

Notes to Decisions

Sufficiency of Documentation.

City building official did not misapprehend the intent and application of N.D.C.C. §§ 43-03-01 and 43-03-22 regarding the sufficiency of the documentation submitted by the building permit applicant where the proposed facility was properly classified as Group I-1, and there no evidence that the submitted plans were drawn by a registered architect or that they were impressed with the stamp or appropriate indications by a lawful certificate holder. Hale v. City of Minot, 2015 ND 216, 868 N.W.2d 870, 2015 N.D. LEXIS 224 (N.D. 2015).

43-03-02. Persons exempt from regulations.

  1. The architect registration provisions of this chapter do not apply to:
    1. A person supervising the erection, enlargement, or alteration of a building; or
    2. A person preparing plans and specifications or designing, planning, or administering the construction contracts for the construction, alteration, remodeling, or repair of:
      1. A private residence;
      2. A building that under applicable building code does not exceed two stories in height exclusive of a one-story basement, and is:
        1. A garage;
        2. A building not considered to have a primary building code occupancy classification of assembly group A-1, educational group E, high-hazard group H, or institutional group I;
        3. A building considered to have a primary building code occupancy classification of assembly groups A-2, A-3, A-4, or A-5; business group B; factory industrial group F; mercantile group M; or residential group R;
        4. A pre-engineered metal building;
        5. A building for the marketing, storage, or processing of farm products; or
        6. A warehouse;
      3. Rental apartment units that do not exceed three stories in height exclusive of a one-story basement;
      4. A farm building; or
      5. A building remodeling or an addition or both, which does not change its use to a primary building code occupancy classification of assembly group A-1, educational group E, high-hazard group H, or institutional group I.
  2. The landscape architect registration provisions of this chapter do not apply to:
    1. An architect, a professional engineer, or a land surveyor in the course of providing professional services for which otherwise licensed or registered;
    2. A nursery worker, gardener, landscape designer, or landscape contractor in the course of preparing planting plans or installing plant material, to the extent these activities do not impact the public health, safety, or welfare;
    3. An individual in the course of planning or otherwise caring for that individual’s property; or
    4. An irrigation designer, contractor, or service provider in the course of preparing irrigation plans or installing, repairing, or maintaining irrigation systems.
  3. This chapter does not:
    1. Apply to an officer or employee of the United States government while engaged in governmental work in this state;
    2. Curtail or extend the right of any other profession regulated in this state;
    3. Prevent the independent employment of a registered professional engineer for any professional service related solely to civil, structural, mechanical, or electrical engineering in connection with any building or building project; or
    4. Supersede, override, or amend the provisions of chapter 43-19.1 regarding registration of professional engineers and land surveyors or chapter 43-07 regarding registration of contractors.

Source:

S.L. 1917, ch. 58, §§ 16, 17; 1923, ch. 130, § 1; 1925 Supp., §§ 2997a16, 2997a17; R.C. 1943, § 43-0302; S.L. 1979, ch. 187, § 83; 2003, ch. 356, § 2; 2009, ch. 358, § 2; 2011, ch. 305, § 1.

43-03-03. State board of architecture and landscape architecture — Members — Term of office — How vacancies filled.

The state board of architecture and landscape architecture consists of three members appointed by the governor for terms of six years each with their terms of office so arranged that one term and only one expires on March fourteenth of each odd-numbered year. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until that member’s successor is appointed and qualified, and any vacancy occurring in the board must be filled by the governor for the unexpired term.

Source:

S.L. 1917, ch. 58, §§ 1, 3, 4; 1925 Supp., §§ 2997a1, 2997a3, 2997a4; R.C. 1943, § 43-0303; 2009, ch. 358, § 3.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-03-04. Qualifications of members of board — Removal of members.

Each member of the board must be a resident of this state who is an architect who has been a resident of and in active practice in this state as an architect for not less than five years before appointment. The governor may remove any member of the board for inefficiency or neglect of duty.

Source:

S.L. 1917, ch. 58, §§ 1, 5; 1925 Supp., §§ 2997a1, 2997a5; R.C. 1943, § 43-0304; S.L. 1973, ch. 345, § 2; 2009, ch. 358, § 4.

43-03-05. Meetings of board — Officers elected.

  1. The board shall hold regular meetings at least once each year, with the date and location set by the board. The board may meet as designated by a majority of the board. The board shall select from among its members a president and a secretary-treasurer.
  2. The board may:
    1. Administer an oath;
    2. Take an affidavit;
    3. Summon a witness;
    4. Take testimony as to matters coming within the scope of the board’s duties;
    5. Enter an interstate or intrastate agreement or association with other boards of licensure for the purpose of establishing reciprocity, developing examinations, evaluating applicants, or other activities to enhance the services of the board to the state, the registrant, or the public; and
    6. Appoint or contract an executive director and any other individual the board determines is necessary to administer the affairs of the board.
  3. The board shall:
    1. Adopt a seal to be affixed to each certificate of registration issued by the board;
    2. Issue certificates of registration to qualified applicants; and
    3. Adopt rules in accordance with chapter 28-32.
  4. The secretary-treasurer shall keep a record of the proceedings of the board.

Source:

S.L. 1917, ch. 58, § 7; 1925 Supp., § 2997a7; R.C. 1943, § 43-0305; 2009, ch. 358, § 5.

43-03-06. Salary of executive director — Expenses of board.

  1. If the board appoints or contracts an executive director, the executive director is entitled to receive such salary as fixed by a resolution of the board adopted at a regular meeting, and is entitled to receive reimbursement for travel, lodging, and other expenses as are incurred legitimately in the performance of the executive director’s official duties.
  2. Each member of the board is entitled to receive a per diem of seventy-five dollars for each day or portion of a day spent in the discharge of the member’s duties, such mileage as is provided for by section 54-06-09, and is entitled to reimbursement for the member’s actual and necessary expenses incurred in the discharge of the member’s official duties.
  3. The expenses of the board at no time may exceed the amount of moneys received and on deposit to the credit of the board under the provisions of this chapter.

Source:

S.L. 1917, ch. 58, §§ 9 to 11; 1925 Supp., § 2997a9 to 2997a11; R.C. 1943, § 43-0306; S.L. 1973, ch. 345, § 3; 2009, ch. 358, § 6.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-03-07. Deposit of fees — Separate fund — Vouchers. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-03-08. Board to adopt rules.

The board shall adopt rules:

  1. To govern board proceedings.
  2. For the examination of candidates for registration.
  3. For the regulation of the practice of architecture and landscape architecture.
  4. For education requirements of registration applicants.
  5. For practical experience requirements of registration applicants.

Source:

S.L. 1917, ch. 58, § 6; 1925 Supp., § 2997a6; R.C. 1943, § 43-0308; S.L. 2003, ch. 356, § 3; 2009, ch. 358, § 7.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-03-09. Prohibited acts — Injunction.

  1. A person may not practice architecture in this state unless registered as an architect under this chapter or otherwise authorized by the board. A person may not practice landscape architecture in this state unless registered as a landscape architect under this chapter or otherwise authorized by the board.
  2. A person may not fraudulently obtain or furnish a certificate of registration to practice architecture or landscape architecture.
  3. A person that is not registered under this chapter may not:
    1. Advertise, represent, or in any manner hold that person out as an architect or landscape architect;
    2. In connection with the person’s business or name, or otherwise, assume, use, or advertise any term, title, or description or engage in any other conduct that reasonably might be expected to mislead another to believe the person is an architect or landscape architect; or
    3. Except as a copartnership of architects, engage in the solicitation of architecture or landscape architecture services as an individual or corporation.
  4. Through the attorney general, the board may seek to enjoin a person from committing an act in violation of this chapter. The board is not required to prove irreparable injury to enjoin a violation of this chapter.

Source:

S.L. 1917, ch. 58, § 15; 1919 Sp., ch. 17, § 1; 1925 Supp., § 2997a15; R.C. 1943, § 43-0309; S.L. 2003, ch. 356, § 4; 2009, ch. 358, § 8; 2011, ch. 305, § 2.

Notes to Decisions

Corporation.

Corporation could not be registered and could not practice architecture. State Bd. of Arch. v. Kirkham, Michael & Assocs., 179 N.W.2d 409 (N.D. 1970), decided prior to 1971 amendment of N.D.C.C. § 10-31-04 to specifically mention this chapter.

Collateral References.

Responsibility of one acting as architect for defects or insufficiency of work attributable to plans, 25 A.L.R.2d 1085.

Liability of architect for improper issuance of certificate, 43 A.L.R.2d 1227.

Corporation’s practice of architecture, 56 A.L.R.2d 726.

Architectural services: what amounts to architectural or engineering services within license requirements, 82 A.L.R.2d 1013.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he was not licensed in the latter state, 32 A.L.R.3d 1151.

Liability to one injured in course of construction, based on architect’s alleged failure to carry out supervisory responsibilities, 59 A.L.R.3d 869.

Tort liability of project architect for economic damages suffered by contractor, 65 A.L.R.3d 249.

Architect’s liability for personal injury or death allegedly caused by improper or defective plans or designs, 97 A.L.R.3d 455.

Event triggering liability insurance coverage as occurring within period of time covered by liability insurance policy where injury or damage is delayed—modern cases, 14 A.L.R.5th 695.

Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R.6th 497.

Necessity and Admissibility of Expert Testimony to Establish Malpractice or Breach of Professional Standard of Care by Architect, 47 A.L.R.6th 303.

Tort Liability of Project Architect or Engineer for Economic Damages Suffered by Contractor or Subcontractor, 61 A.L.R.6th 445.

43-03-10. Regulation of use of titles.

  1. A person may not use the title or designation “architect”, “registered architect”, “licensed architect”, any variation of those terms, or any other words, letters, or device to indicate that person is an architect authorized to practice architecture in this state unless that person is registered as an architect under this chapter. In a copartnership of architects, each member of the partnership shall hold a certificate of registration to practice.
  2. A person may not use the title or designation “landscape architect”, “registered landscape architect”, “licensed landscape architect”, any variation of those terms, or any other words, letters, or device to indicate that person is a landscape architect authorized to practice landscape architecture in this state unless that person is registered as a landscape architect under this chapter.
  3. This chapter does not authorize a landscape architect to use the title “architect” or to practice architecture.

Source:

S.L. 1917, ch. 58, §§ 15, 19; 1919 Sp., ch. 17, § 1; 1925 Supp., §§ 2997a15, 2997a19; R.C. 1943, § 43-0310; S.L. 2003, ch. 356, § 5; 2009, ch. 358, § 9.

Collateral References.

Corporation’s practice of architecture, 56 A.L.R.2d 726.

43-03-11. Application for examination — Fee.

Before an individual may take the examination for registration as an architect or a landscape architect, that individual shall make an application to the board submitting satisfactory evidence of having the required qualifications and shall pay an examination fee of not more than one hundred dollars. If an applicant fails to pass the examination, at the next regularly scheduled examination the applicant may take a partial or entire re-examination as determined appropriate by the board. An applicant shall pay a re-examination fee of not more than one hundred dollars for a re-examination. The fee for re-examination may be waived in whole or in part by the board.

Source:

S.L. 1917, ch. 58, §§ 18, 20; 1925 Supp., §§ 2997a18, 2997a20; R.C. 1943, § 43-0311; S.L. 1973, ch. 345, § 4; 2003, ch. 356, § 6; 2009, ch. 358, § 10.

43-03-12. Board to issue certificates of registration. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

43-03-13. Qualifications.

An applicant for registration as an architect or landscape architect:

  1. Must be at least eighteen years of age;
  2. Must be of good moral character, with rejection possible on the basis of:
    1. Conviction of an offense determined by the board to have a direct bearing upon an applicant’s ability to serve the public as an architect or a landscape architect, or the board determines, following conviction of an offense, that the applicant is not sufficiently rehabilitated under section 12.1-33-02.1;
    2. Misstatement or misrepresentation of fact by the applicant in connection with that individual’s application; or
    3. Violation of any of the standards of conduct required of registrants;
  3. Must have successfully completed an examination for registration;
  4. In the case of an architect, must hold a professional degree in architecture from an accredited school of architecture and must have the required practical experience, as established by the board;
  5. In the case of a landscape architect, must hold a professional degree in landscape architecture from an accredited school of landscape architecture and must have the required practical experience, as established by the board; and
  6. Must satisfy registration criteria adopted by the board.

Source:

S.L. 1917, ch. 58, §§ 18, 20; 1925 Supp., §§ 2997a18, 2997a20; R.C. 1943, § 43-0313; S.L. 1973, ch. 345, § 5; 1977, ch. 130, § 16; 2003, ch. 356, § 8; 2009, ch. 358, § 11.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Notes to Decisions

Applicant As Corporate Employee.

It was improper for board to deny architect a license because at the time of his application he was an employee of a corporation and board anticipated that he would illegally practice architecture as an employee of a corporation. Guariglia v. North Dakota State Bd. of Architecture, 268 N.W.2d 478, 1978 N.D. LEXIS 170 (N.D. 1978).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-03-14. Examination.

  1. Before an applicant may be registered as an architect, the applicant shall pass satisfactorily an examination established by the board.
  2. Before an applicant may be registered as a landscape architect, the applicant shall pass satisfactorily an examination established by the board.
  3. The board may administer an examination or may recognize a board-approved examination of a nationally recognized entity.

Source:

S.L. 1917, ch. 58, §§ 21 to 25; 1925 Supp., §§ 2997a21 to 2997a25; R.C. 1943, § 43-0314; S.L. 1973, ch. 345, § 6; 2009, ch. 358, § 12.

43-03-15. When examination not necessary.

The board may admit a nonresident applicant seeking to register to practice architecture or landscape architecture in North Dakota without requiring the applicant to pass an examination if the applicant is licensed or registered to practice architecture or landscape architecture under the laws of any other state that has requirements substantially equal to those provided for under this chapter. An applicant under this section shall pay the fees provided for under section 43-03-18.

Source:

S.L. 1917, ch. 58, § 26; 1925 Supp., § 2997a26; S.L. 1941, ch. 182, § 1; R.C. 1943, § 43-0315; S.L. 1973, ch. 345, § 7; 2009, ch. 358, § 13; 2011, ch. 305, § 3.

Notes to Decisions

Discretion of Board.

Use of the phrase “may be admitted to practice” in this section does not give the board discretion to deny a license to an otherwise qualified applicant; and the discretion the board does have is limited to determining whether or not to waive the examination requirement for a nonresident applicant. Guariglia v. North Dakota State Bd. of Architecture, 268 N.W.2d 478, 1978 N.D. LEXIS 170 (N.D. 1978).

43-03-16. Result of examinations recorded — List of certificate holders.

The result of every examination for registration as an architect or a landscape architect and the evidence of qualifications must be recorded by the secretary-treasurer of the board. The secretary-treasurer of the board shall maintain a list of architects and landscape architects certified under this chapter. This list of certificate holders must contain each certificate holder’s name, current business address, certification number, and the expiration date of the certificate.

Source:

S.L. 1917, ch. 58, §§ 28, 30; 1925 Supp., §§ 2997a28, 2997a30; R.C. 1943, § 43-0316; S.L. 1967, ch. 98, § 33; 1973, ch. 345, § 8; 1975, ch. 395, § 1; 2003, ch. 356, § 9; 2009, ch. 358, § 14.

43-03-17. Certificates of registration — Term.

An initial certificate of registration as an architect or a landscape architect expires on June thirtieth of the year following the date of issuance. A renewed certificate of registration is valid for two years.

Source:

S.L. 1917, ch. 58, §§ 29, 32; 1925 Supp., §§ 2997a29, 2997a32; S.L. 1941, ch. 182, § 2; R.C. 1943, § 43-0317; S.L. 2003, ch. 356, § 10; 2009, ch. 358, § 15.

43-03-18. Fees.

  1. The following fees apply to architects and landscape architects:
    1. Following examination, a registration fee of not more than three hundred dollars, as set by the board.
    2. When examination is not necessary under section 43-03-15, a registration fee of not more than three hundred dollars, as set by the board.
    3. A registration renewal fee, which need not be collected annually, but which must be based on no more than three hundred dollars per year, as set by the board.
    4. Fees set by the board under this subsection are not subject to chapter 28-32.
  2. If in any year the board incurs expenses related to regulation of architects and landscape architects which are in excess of the income generated through fees for that year, the board may assess a special fee to cover these excess expenses. The board may continue an annual special fee assessed under this subsection until the excess obligations are met. A certificate holder who fails to pay a special fee assessed by the board under this subsection is subject to the forfeiture provisions under section 43-03-19.
  3. Fees set by the board may not exceed the amount reasonably necessary to regulate the professions of architecture and landscape architecture.

Source:

S.L. 1917, ch. 58, §§ 29, 32; 1925 Supp., §§ 2997a29, 2997a32; S.L. 1941, ch. 182, § 2; R.C. 1943, § 43-0318; S.L. 1973, ch. 345, § 9; 1983, ch. 470, § 1; 2003, ch. 356, § 11; 2009, ch. 358, § 16.

Cross-References.

Application and reexamination fees, see N.D.C.C. § 43-03-11.

Fee when renewal fee not paid when due, see N.D.C.C. § 43-03-19.

43-03-19. Renewal — Forfeiture.

  1. A holder of a certificate of registration as an architect or a landscape architect shall apply to renew the certificate and pay the associated renewal fee or a special fee when due. Application for renewal must be accompanied by evidence satisfactory to the board of compliance with this chapter. Failure of a certificate holder to timely renew the certificate and pay the associated renewal fee before the expiration of the certificate results in forfeiture of the certificate.
  2. At least two months before the date of the expiration of a certificate of registration, the secretary-treasurer shall notify the certificate holder of the upcoming expiration and at least two weeks before the expiration date the secretary-treasurer shall notify any outstanding certificate holders by certified mail, at the certificate holder’s last-known address, of the upcoming expiration and resulting forfeiture.

Source:

S.L. 1917, ch. 58, § 33; 1925 Supp., § 2997a33; S.L. 1941, ch. 182, § 3; R.C. 1943, § 43-0319; S.L. 1973, ch. 345, § 10; 1983, ch. 470, § 2; 2003, ch. 356, § 12; 2009, ch. 358, § 17.

43-03-20. Revocation, denial, or suspension of registration.

If the board revokes, denies, or suspends the certificate of registration or application of a certificate holder or applicant for certificate, the certificate holder or applicant has a right to a hearing before the board on such contemplated disciplinary action and has a right to appeal to the courts from the decision of the board on the hearing. All of the provisions of chapter 28-32 relating to proceedings before an administrative agency are applicable to and govern the notice of hearing, the hearing, and the right of appeal from the board’s decision. The board may revoke, deny, or suspend any certificate of registration of or application to be an architect or a landscape architect upon proof:

  1. The certificate was obtained or attempted to be obtained by fraud, deceit, or material misrepresentation of fact in applying for a certificate or renewal of a certificate or in passage of the examination under this chapter;
  2. The holder of the certificate has been guilty of malfeasance, deceit, fraud, gross incompetency, or negligence in connection with the holder’s practice of architecture or landscape architecture;
  3. The holder of the certificate has exhibited mental incompetency, untrustworthiness, incompetency, or misconduct in the practice of architecture or landscape architecture as evidenced by conduct that endangers life, health, property, or the public welfare.
  4. The holder of the certificate allowed a nonregistered person to practice as an architect by the device of permitting the certificate holder’s name or stamp to be placed upon drawings, or other contract documents, not prepared by the holder or under the holder’s direct supervision;
  5. The holder of the certificate or applicant had an architecture or a landscape architecture license of another state suspended or revoked or was otherwise disciplined by another state;
  6. The holder of the certificate or applicant was convicted of an offense determined by the board to have a direct bearing upon the certificate holder’s or applicant’s ability to serve the public as an architect or landscape architect; or that, following conviction of an offense, the holder or applicant is not sufficiently rehabilitated under section 12.1-33-02.1; or
  7. The holder of the certificate or applicant violated this chapter or rules adopted under this chapter. If a certificate holder or applicant is convicted of a crime in another state which would constitute a violation of this chapter had the criminal action taken place in this state, a copy of the judgment of conviction certified by the rendering court is presumptive evidence of the conviction in any hearing under this section. For purposes of this subsection, a conviction includes a plea of nolo contendere or its equivalent.

Source:

S.L. 1917, ch. 58, § 31; 1925 Supp., § 2997a31; R.C. 1943, § 43-0320; S.L. 1973, ch. 345, § 11; 1977, ch. 130, § 17; 2003, ch. 356, § 13; 2009, ch. 358, § 18.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-03-21. Penalty.

Any person willfully violating this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1917, ch. 58, § 34; 1925 Supp., § 2997a34; R.C. 1943, § 43-0321; S.L. 1973, ch. 345, § 12; 1975, ch. 106, § 470; 2003, ch. 356, § 14.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-03-22. Stamp.

At the time of the issuance of the certificate of registration, the board shall require the certificate holder to acquire, at the certificate holder’s expense, a stamp or indicia to be used by the certificate holder in the conduct of the certificate holder’s practice and to be impressed upon drawings, plans, and other documents prepared by the certificate holder. The board shall adopt rules governing the technical requirements of such stamp and indicia and the certificate holder’s signature.

Source:

S.L. 1973, ch. 345, § 13; 2003, ch. 356, § 15; 2009, ch. 358, § 19.

Notes to Decisions

Sufficiency of Documentation.

City building official did not misapprehend the intent and application of N.D.C.C. §§ 43-03-01 and 43-03-22 regarding the sufficiency of the documentation submitted by the building permit applicant where the proposed facility was properly classified as Group I-1, and there no evidence that the submitted plans were drawn by a registered architect or that they were impressed with the stamp or appropriate indications by a lawful certificate holder. Hale v. City of Minot, 2015 ND 216, 868 N.W.2d 870, 2015 N.D. LEXIS 224 (N.D. 2015).

43-03-23. Liability for contractor’s fault — Liability for own negligence.

An architect or a landscape architect is not liable for the safety of persons or property on or about a construction project site, or for the construction techniques, procedures, sequences and schedules or for the conduct, action, errors, or omissions of any construction contractor, subcontractor, or material supplier, their agents or their employees, unless the architect or landscape architect assumes responsibility therefor by contract or by the architect’s or landscape architect’s actual conduct. This section does not relieve an architect or a landscape architect from liability from the architect’s or landscape architect’s negligence, whether in the architect’s or landscape architect’s design work or otherwise.

Source:

S.L. 1979, ch. 458, § 1; 2003, ch. 356, § 16.

Collateral References.

Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R.6th 497.

Necessity and Admissibility of Expert Testimony to Establish Malpractice or Breach of Professional Standard of Care by Architect, 47 A.L.R.6th 303.

Tort Liability of Project Architect or Engineer for Economic Damages Suffered by Contractor or Subcontractor, 61 A.L.R.6th 445.

43-03-24. Landscape architect and architect advisory committees. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

43-03-25. Use of additional funds for landscape architect regulation. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

CHAPTER 43-04 Barbers

43-04-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the board of barber examiners.
  2. “Practice of barbering” includes any one or any combination of the following practices when done upon the upper part of the human body for cosmetic purposes and not for the treatment of diseases or physical or mental ailments, and when done for payment either directly or indirectly:
    1. Shaving or trimming the beard or cutting the hair.
    2. Giving facial or scalp massages or treatments with oils, creams, lotions, or other preparations either by hand or mechanical appliances.
    3. Singeing, shampooing, or dyeing the hair or applying hair tonics.
    4. Applying cosmetic preparations, antiseptics, powders, oils, clays, or lotions to scalp, face, neck, or upper part of the body.

Source:

S.L. 1901, ch. 30, § 13; R.C. 1905, § 362; C.L. 1913, § 571; S.L. 1927, ch. 101, § 2; 1943, ch. 93, § 2; R.C. 1943, § 43-0401.

Cross-References.

Hairdressers and cosmetologists, see N.D.C.C. ch. 43-11.

43-04-02. Declaration of policy.

It is hereby declared that the practice of barbering, by reason of the personal contacts exercised therein, is a business affecting the public health, public welfare, and public safety, that immediate public supervision and control of said occupation in the exercise of the police power of this state and in accordance with the proper standards of said profession, are necessary to the protection and preservation of the public health, public safety, and public welfare, and that this chapter is enacted in the exercise of the police power of this state to protect the public welfare, public health, and public safety.

Source:

S.L. 1943, ch. 93, § 1; R.C. 1943, § 43-0402; S.L. 1979, ch. 459, § 1.

Collateral References.

Price schedules for barbers, validity of statute establishing or authorizing, 54 A.L.R.3d 916.

Law Reviews.

Some Phases of 1927 Legislation in North Dakota, 1 Dak. L. Rev. 65 (Issue No. III) (1927).

43-04-03. Exemptions.

The following persons, when engaged in the proper discharge of their occupational duties, are exempt from the provisions of this chapter:

  1. Persons authorized by the laws of this state to practice medicine and surgery.
  2. Commissioned medical or surgical officers of the United States army, navy, air force, or marine hospital service.
  3. Registered nurses.
  4. Registered hairdressers and cosmetologists.

The persons exempt by subsections 1, 2, and 3 may not shave nor trim the beard nor cut the hair of any person for cosmetic purposes.

Source:

S.L. 1927, ch. 101, § 4; R.C. 1943, § 43-0403.

43-04-04. Board of barber examiners — Appointment — Term of office — Qualifications.

The board of barber examiners must consist of three members, each of whom must be appointed by the governor for a term of three years. The terms of office of the members must be so arranged that one term expires on the thirty-first day of December of each year. Each appointment must be made from a list of five names submitted to the governor by the state barber association, and each member must be a registered barber who has followed the occupation of barber in this state for at least five years prior to that member’s appointment.

Source:

S.L. 1901, ch. 30, § 2; R.C. 1905, § 350; C.L. 1913, § 559; S.L. 1927, ch. 101, § 20; R.C. 1943, § 43-0404; S.L. 1973, ch. 346, § 2.

43-04-05. Oath of office — How vacancies filled — Removal.

Each member of the board shall qualify by taking the oath required for civil officers. A vacancy on the board must be filled by appointment by the governor for the unexpired term. Such appointment must be made from the list of five names submitted to the governor by the state barber association from which the original appointment was made. A member of the board may be removed by the governor for cause.

Source:

S.L. 1901, ch. 30, § 2; R.C. 1905, § 350; C.L. 1913, § 559; S.L. 1927, ch. 101, § 20; R.C. 1943, § 43-0405; S.L. 1945, ch. 261, § 1; 1957 Supp., § 43-0405.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-04-06. Officers of board — Power to administer oath — Bond.

The members of the board shall elect from their number a president, vice president, and secretary-treasurer. The secretary-treasurer of the board must be bonded for the faithful discharge of duties in the penal sum of five thousand dollars. The secretary-treasurer and the president of the board may administer oaths.

Source:

S.L. 1901, ch. 30, § 3; R.C. 1905, § 351; C.L. 1913, § 560; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0406; S.L. 1975, ch. 258, § 17.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14, and N.D.C.C. ch. 26.1-21.

43-04-07. Compensation — Expenses — How paid.

Each member of the board is entitled to receive daily compensation for actual services in an amount not to exceed one hundred dollars and must be paid for actual expenses, as provided by law, incurred in attending meetings of the board and in performing official duties. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1901, ch. 30, § 4; R.C. 1905, § 352; C.L. 1913, § 561; S.L. 1927, ch. 101, § 21; 1943, ch. 92, § 6; R.C. 1943, § 43-0407; S.L. 1947, ch. 294, § 1; 1957, ch. 294, § 1; 1957 Supp., § 43-0407; S.L. 1971, ch. 510, § 6; 1973, ch. 346, § 3; 1979, ch. 459, § 2; 1997, ch. 363, § 1; 2017, ch. 284, § 1, effective August 1, 2017.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-04-08. Expenses — How paid. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-04-09. Headquarters of board — Board to adopt seal — Quorum.

The board shall have its headquarters at such suitable place as may be designated by it. It shall adopt and use a common seal for the authentication of its orders and records. The majority of the members of the board in a meeting duly assembled may perform and exercise all the duties and powers imposed upon the board.

Source:

S.L. 1901, ch. 30, § 3; R.C. 1905, § 351; C.L. 1913, § 560; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0409.

43-04-10. Board to employ necessary inspectors and assistants.

The board may employ such inspectors, clerks, and other assistants as it may deem necessary to carry out the provisions of this chapter.

Source:

S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0410.

43-04-11. Rules and orders. [Effective through August 31, 2022]

The board may adopt and enforce all rules and orders necessary to carry out the provisions of this chapter:

  1. It may prescribe sanitary regulations for barbershops and barber schools. Such regulations shall be subject to the approval of the state department of health. A copy of the rules and regulations adopted by the board and approved by the state department of health shall be furnished by the board to the owner or manager of every barbershop and barber school and shall be posted by such owner or manager in a conspicuous place in such barbershop or barber school.
  2. Every other rule or order of the board shall be posted for public inspection in the main office of the board and a certified copy shall be filed in the office of the secretary of the board and published in the press publications representing the barber industry. An order applying only to a person or persons named therein shall be served on the person or persons affected. An order herein required shall be served by personal delivery of a certified copy or by mailing a certified copy in a sealed envelope with postage prepaid to each person affected thereby, or in the case of a corporation or limited liability company, to an officer, manager, or agent of the corporation or limited liability company upon whom a summons may be served in accordance with the provisions of law. The posting in the main office of the board of any rule or order not required by this chapter to be served, and such filing in the office of the secretary of the board and publishing in representative publications, shall constitute due and sufficient notice to all persons affected by such rule or order. A rule of the board when duly published, posted, and filed as provided in this section, shall have binding force and effect.

Source:

S.L. 1927, ch. 101, § 22; 1943, ch. 93, § 5; R.C. 1943, § 43-0411; S.L. 1979, ch. 459, § 3; 1993, ch. 54, § 106; 1995, ch. 243, § 2.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-04-11. Rules and orders. [Effective September 1, 2022]

The board may adopt and enforce all rules and orders necessary to carry out the provisions of this chapter:

  1. It may prescribe sanitary regulations for barbershops and barber schools. Such regulations shall be subject to the approval of the department of health and human services. A copy of the rules and regulations adopted by the board and approved by the department of health and human services shall be furnished by the board to the owner or manager of every barbershop and barber school and shall be posted by such owner or manager in a conspicuous place in such barbershop or barber school.
  2. Every other rule or order of the board shall be posted for public inspection in the main office of the board and a certified copy shall be filed in the office of the secretary of the board and published in the press publications representing the barber industry. An order applying only to a person or persons named therein shall be served on the person or persons affected. An order herein required shall be served by personal delivery of a certified copy or by mailing a certified copy in a sealed envelope with postage prepaid to each person affected thereby, or in the case of a corporation or limited liability company, to an officer, manager, or agent of the corporation or limited liability company upon whom a summons may be served in accordance with the provisions of law. The posting in the main office of the board of any rule or order not required by this chapter to be served, and such filing in the office of the secretary of the board and publishing in representative publications, shall constitute due and sufficient notice to all persons affected by such rule or order. A rule of the board when duly published, posted, and filed as provided in this section, shall have binding force and effect.

Source:

S.L. 1927, ch. 101, § 22; 1943, ch. 93, § 5; R.C. 1943, § 43-0411; S.L. 1979, ch. 459, § 3; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2021, ch. 352, § 355, effective September 1, 2022.

43-04-12. General powers of board.

The board is an instrumentality of the state and shall act for the purpose of administering the provisions of this chapter and has such specific powers as are necessary to administer and enforce the same. The board has the following additional powers:

  1. To supervise and regulate barbering practice in the state of North Dakota in the manner and for the purposes provided herein.
  2. To investigate as conditions permit and regulate as conditions require all matters pertaining to the proper supervision and control of all barbershops and the work of all barbers within this state, in conformity with the intents and purposes of this chapter.
  3. To act as mediator and arbitrator in any controversy or issue that may arise among or between barbers as between themselves, or that may arise between them as groups, in harmony with and supplementary to any lawfully constituted medium of arbitration now existing or hereafter created, having jurisdiction of such matters.
  4. To issue subpoenas and to administer oaths as provided in section 43-04-13 whenever necessary to carry out the purposes and intents of this chapter, and to issue commissions to take depositions of witnesses absent from this state whenever necessary for such purposes.
  5. The board shall sponsor an educational program to carry out the purposes of protecting the public health and safety by encouraging barbershops that are clean, healthful, and sanitary with capable, skilled, professional barbers. The board is directed to use the sum of five dollars from each fee paid for the renewal of any barber’s certificate for the purpose of such educational program.

Source:

S.L. 1943, ch. 93, §§ 3, 4; R.C. 1943, § 43-0412; S.L. 1957, ch. 294, § 2; 1957 Supp., § 43-0412; S.L. 1979, ch. 459, § 4.

43-04-13. Investigations.

The practice and procedure of the board with respect to any investigation by the board authorized by this chapter must be in accordance with rules and regulations to be promulgated by the board, which must provide for at least twenty days’ notice in writing to all persons affected by orders to be made by the board after such investigation, and an opportunity to be heard either in person or by counsel and to introduce testimony in their behalf at a public hearing to be held for that purpose. Notice of any such investigation or hearing must be given to all persons to be directly affected thereby in the manner and form provided in section 43-04-41. For the purposes of such investigation or any hearing which the board is authorized or required to conduct, the board or any members thereof, and its secretary, may conduct such hearing, administer oaths, take depositions, issue subpoenas, and compel the attendance of witnesses and the production of books, papers, documents, and testimony. In case of failure of any person to comply with any order of the board or a subpoena issued by the board, or by any of its members, or its secretary, or on the refusal of a witness to testify to any matter regarding which the witness may be lawfully interrogated, the district judge of the county in which the person resides, on application of any member of the board, or its secretary, by order duly entered, may require the compliance of such person with any such order, and may enforce such compliance as in the case of disobedience of the requirements of a subpoena issued from such court, or of a refusal to testify therein. Each officer who serves a subpoena shall receive the same fees as a sheriff, and each witness who appears in obedience to a subpoena, before the board or a member, or its secretary, shall receive for attendance the fees and mileage provided for witnesses in civil cases in the courts of this state, which must be audited and paid in the same manner as other expenses are audited and paid, upon the presentation of proper vouchers approved by any two members of the board. No witnesses subpoenaed at the instance of a party other than the board, or one of its members, or its secretary shall be entitled to compensation unless the board certifies that this testimony was material to the matter investigated.

Source:

S.L. 1943, ch. 93, § 6; R.C. 1943, § 43-0413.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Sheriff’s fee for service of subpoena, see N.D.C.C. § 11-15-07.

Subpoenas, see ch. 31-03; N.D.R.Civ.P. 45; N.D.R.Crim.P. 17.

Witness fees in civil cases, see N.D.C.C. § 31-01-16.

43-04-14. Reports to board.

Each licensee, from time to time, as required by rule or order of the board, shall make and file a verified report, on forms prescribed by the board, of all matters on account of which a record is required to be kept, together with such other information or facts as may be pertinent and material within the scope of the purpose and intent of this chapter. Such report must cover a period of time specified in the order.

Source:

S.L. 1943, ch. 93, § 9; R.C. 1943, § 43-0414.

43-04-15. Information obtained by board confidential.

No member of said board, nor any officer, agent, or employee thereof, shall divulge to any person, firm, corporation, or limited liability company the contents of any document, paper, or record, examined by the person in the performance of the person’s duties hereunder, or any information obtained by the person in the course of the person’s investigation, except as may be required to carry out the purpose of this chapter.

Source:

S.L. 1943, ch. 93, § 11; R.C. 1943, § 43-0415; S.L. 1993, ch. 54, § 106.

43-04-16. Order fixing minimum price schedules of barber services. [Repealed]

Repealed by S.L. 1979, ch. 459, § 6.

43-04-17. Amending or modifying price schedules after approval. [Repealed]

Repealed by S.L. 1979, ch. 459, § 6.

43-04-18. Records of board — Register of certificates.

The board shall keep a record of its proceedings relating to the issuance, refusal, renewal, suspension, and revocation of certificates of registration. This record also must contain the name, place of business, and place of residence of each registered barber and each registered apprentice, and the date and number of the person’s certificate of registration. This record must be open to public inspection at all reasonable times.

Source:

S.L. 1901, ch. 30, § 11; R.C. 1905, § 360; C.L. 1913, § 569; S.L. 1927, ch. 101, § 22; R.C. 1943, § 43-0418.

43-04-19. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1901, ch. 30, § 5; R.C. 1905, § 353; C.L. 1913, § 562; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0419; S.L. 1963, ch. 346, § 38; 1973, ch. 403, § 28; 1975, ch. 466, § 30; 1995, ch. 350, § 29.

43-04-20. Moneys of board held by treasurer — How disbursed.

Moneys collected for the board under the provisions of this chapter must be kept by the treasurer and disbursed only on warrants signed by the president and the secretary of the board. At the end of the treasurer’s term, the treasurer shall account to the successor to the office for any moneys remaining in the treasurer’s hands.

Source:

S.L. 1901, ch. 30, § 5; R.C. 1905, § 353; C.L. 1913, § 562; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0420.

43-04-21. Barbershop under the supervision of registered barber.

No person may operate a barbershop unless at all times it is under the direct supervision and management of a registered barber.

Source:

S.L. 1927, ch. 101, § 1; R.C. 1943, § 43-0421.

43-04-22. Apprentice barber — Certificate of registration required — Powers. [Repealed]

Source:

S.L. 1901, ch. 30, § 9; 1903, ch. 38, § 1; R.C. 1905, § 357; C.L. 1913, § 566; S.L. 1927, ch. 101, §§ 1, 3; 1931, ch. 97, § 1; R.C. 1943, § 43-0422; S.L. 1947, ch. 293, § 1; 1957 Supp., § 43-0422; S.L. 1983, ch. 471, § 1; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-23. Qualifications for certificate of registration as registered apprentice. [Repealed]

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 6; R.C. 1943, § 43-0423; S.L. 1967, ch. 346, § 1; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-24. Minimum standard of schools of barbering.

No school of barbering may be approved by the board unless it requires as a prerequisite to graduation a course of instruction of not less than one thousand five hundred hours to be completed within a reasonable period of time as determined by the board with not more than eight hours in any one working day. Such course of instruction must include the following subjects:

  1. Scientific fundamentals of barbering.
  2. Hygiene.
  3. Bacteriology.
  4. Histology of the hair, skin, muscles, and nerves.
  5. Structure of the head, face, and neck.
  6. Elementary chemistry relating to sterilization and antiseptics.
  7. Diseases of the skin, glands, and nails.
  8. Massaging and manipulating the muscles of the upper body.
  9. Hair cutting.
  10. Shaving.
  11. Arranging, dressing, coloring, bleaching, perming, and tinting the hair.

Source:

S.L. 1927, ch. 101, § 7; 1943, ch. 92, § 1; R.C. 1943, § 43-0424; S.L. 1959, ch. 318, § 1; 1983, ch. 471, § 2.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

Liability of cosmetology school for injury to patron, 81 A.L.R.4th 444.

43-04-25. Application for admission to barber school.

No school or college of barbering may enroll or admit any student thereto unless such student shall make and file, in duplicate, a duly verified application, which must be in such form and which must contain such matters as the state board of barber examiners may prescribe and which must be obtained by such student or the school or college from said board. One copy of such application must be retained by the school or college enrolling or admitting the student, and the other copy must be filed by such school or college with said board.

Source:

S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0425.

43-04-26. Application for admission to barber school for postgraduate course.

A school or college of barbering may not enroll or admit any student in a postgraduate course thereof, unless the student files, in duplicate, an application, duly verified, which shows the applicant:

  1. Has graduated from a school or college of barbering approved by the board; or
  2. Can prove by sworn affidavits that the applicant has practiced as a barber in another state of the United States for at least two years immediately prior to making the application.

One copy of the application must be retained by the college or school so admitting or enrolling the student and the other must be filed by such school or college with the board. This section contained may not be construed as limiting or modifying the provisions of sections 43-04-31 and 43-04-35.

Source:

S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0426; 2017, ch. 285, § 1, effective August 1, 2017.

43-04-27. Barber school must have permit.

It shall be unlawful for any person, firm, corporation, or limited liability company to operate a barber school or barber college without first obtaining a permit from the state board of barber examiners, fully complying with the provisions of this chapter and paying an annual fee for the operation thereof.

Source:

S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0427; S.L. 1993, ch. 54, § 106.

Cross-References.

Exemption of barber schools from regulations governing postsecondary educational institutions, see N.D.C.C. § 15-20.4-02.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

43-04-28. Apprentice — Permit to practice. [Repealed]

Source:

S.L. 1927, ch. 101, § 11; R.C. 1943, § 43-0428; S.L. 1967, ch. 346, § 2; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-29. Apprenticeship in other state applied to apprenticeship required for registration. [Repealed]

Source:

S.L. 1927, ch. 101, § 11; R.C. 1943, § 43-0429; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-30. Barber — Certificate of registration required.

A person may not practice barbering within this state unless the person holds a certificate of registration and is registered as a barber or holds a permit to practice as a journeyman barber.

Source:

S.L. 1901, ch. 30, § 1; R.C. 1905, § 349; C.L. 1913, § 558; S.L. 1927, ch. 101, § 1; R.C. 1943, § 43-0430.

Notes to Decisions

Injunction.

Barbering without a certificate of registration does not constitute a public nuisance abatable by an equitable action. Richmond v. Miller, 70 N.D. 157, 292 N.W. 633, 1940 N.D. LEXIS 155 (N.D. 1940).

43-04-30.1. Continuing education requirements.

  1. The board may adopt rules establishing requirements for the continuing education of persons licensed under this chapter. Rules for accreditation of continuing education must allow accreditation for a variety of types of continuing education forums, including live presentations and correspondence education.
  2. The board may suspend, revoke, place on probationary status, or refuse to renew any license issued under this chapter if the licensee fails to meet the continuing education requirements established by the board.
  3. An applicant for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source:

S.L. 1997, ch. 363, § 3.

43-04-31. Qualifications for certificate of registration as registered barber.

A person is qualified to receive a certificate of registration to practice barbering if the person:

  1. Is at least eighteen years of age;
  2. Is of good moral character and temperate habits; and
  3. Has passed a satisfactory examination conducted by the board to determine that person’s fitness to practice barbering.

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 5; 1931, ch. 99, § 1; R.C. 1943, § 43-0431; S.L. 1973, ch. 120, § 40; 1983, ch. 471, § 3; 1989, ch. 504, § 1; 2017, ch. 285, § 2, effective August 1, 2017.

43-04-31.1. Conviction not bar to certification or permit — Exceptions.

Conviction of an offense does not disqualify a person from certification or a permit under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a barber, or determines, following conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 18.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-04-32. Barber — Application for examination.

Any person who desires to take the examination for a certificate of registration to practice as a registered barber shall make application to the board on blanks prepared and furnished by the board and shall enclose with the application all of the following:

  1. Proof, under oath, of the person’s qualifications.
  2. A five-inch by three-inch [12.7-centimeter by 7.62-centimeter] signed photograph of that person. The person also shall present such a photograph to the board when the person appears for examination.
  3. The required fee.
  4. A certificate showing graduation from a public or recognized private high school or an equivalent education as determined by an examination conducted by the board; provided, however, that two years armed service should be termed equivalent education.

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 8; R.C. 1943, § 43-0432; S.L. 1967, ch. 346, § 3; 2017, ch. 285, § 3, effective August 1, 2017.

43-04-33. Examinations — Barber.

The board, not less than four times each year, at such times and places as it may determine, shall conduct examinations of applicants for certificates of registration to practice as registered barbers. Each examination must include both a practical demonstration and a written and oral test, and must embrace the subjects usually taught in schools of barbering approved by the board.

Source:

S.L. 1901, ch. 30, § 6; R.C. 1905, § 354; C.L. 1913, § 563; S.L. 1927, ch. 101, § 9; R.C. 1943, § 43-0433; 2017, ch. 285, § 4, effective August 1, 2017.

43-04-34. Failure to pass examination for apprentice barber — When applicant may be re-examined. [Repealed]

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 6; R.C. 1943, § 43-0434; S.L. 1973, ch. 346, § 4; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-35. Failure to pass examination for registered barber — When applicant may be re- examined.

An applicant for a certificate of registration to practice as a registered barber who fails to pass a satisfactory examination conducted by the board must wait an additional three months before that person again is entitled to take the examination for registration as a barber.

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 5; 1931, ch. 99, § 1; R.C. 1943, § 43-0435; 2017, ch. 285, § 5, effective August 1, 2017.

43-04-36. Barber — Certificate of registration — When issued.

The board shall issue to an applicant a certificate of registration as a registered barber whenever the applicant has complied with the provisions of section 43-04-31.

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 10; R.C. 1943, § 43-0436; 2017, ch. 285, § 6, effective August 1, 2017.

43-04-37. Display of certificate of registered barber.

Every holder of a certificate of registration as a registered barber or registered apprentice shall display it in a conspicuous place adjacent to or near that person’s work chair.

Source:

S.L. 1901, ch. 30, § 10; R.C. 1905, § 359; C.L. 1913, § 568; S.L. 1927, ch. 101, § 13; R.C. 1943, § 43-0437.

43-04-38. Persons having practiced barbering in another state — Permit to practice as journeyman barber. [Repealed]

Repealed by S.L. 1987, ch. 511, § 3.

43-04-38.1. Persons having practiced barbering in another state — Qualifications for certificate of registration as registered barber.

The board may waive the requirement of a satisfactory examination and issue to an applicant a certificate of registration to practice barbering, if the applicant:

  1. Is at least eighteen and one-half years of age.
  2. Has completed high school or received a high school equivalency degree.
  3. Has been graduated from a school of barbering approved by the board which requires as a requisite to graduation the completion of not less than one thousand five hundred fifty hours of instruction. If the applicant has not completed the requisite number of hours of instruction, each year of the applicant’s subsequent barbering experience constitutes the equivalent of two hundred hours of instruction which may be applied toward fulfilling the requisite number of hours.
  4. Has a valid license or certificate of registration as a practicing barber from another state that has substantially the same requirements for licensing or registering barbers as required by this chapter.
  5. Delivers to the board a certificate from the examining board of another state certifying that the applicant is a licensed or registered barber in good standing and has practiced full time as a barber in that state for a period of at least three years.
  6. Has paid the required fee.

Source:

S.L. 1987, ch. 511, § 1.

43-04-39. Renewal and restoration of certificates of barber.

Every registered barber who continues in active practice or service, annually, on or before July first, shall renew that person’s certificate of registration and pay the required fee. Every certificate of registration which has not been renewed during the month of July in any year expires the first day of August in that year. A registered barber whose certificate of registration has expired may have that person’s certificate restored immediately upon payment of the required restoration fee. Any registered barber who retires from the practice of barbering for not more than five years may renew that person’s certificate upon payment of the required restoration fee.

Source:

S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 14; R.C. 1943, § 43-0439; 2017, ch. 285, § 7, effective August 1, 2017.

43-04-40. Refusal and revocation of certificate.

The board either may refuse to issue or renew a certificate of registration to practice barbering or may suspend or revoke the same for any one, or a combination, of the following causes:

  1. Conviction of an offense, shown by a certified copy of the record of conviction, determined by the board to have a direct bearing upon a person’s ability to serve the public as a barber, or the board determines, following conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  2. Gross malpractice or gross incompetency.
  3. Continued practice by a person knowingly having an infectious or contagious disease.
  4. Habitual drunkenness or habitual addiction to the use of morphine, cocaine, or other habit-forming drug.
  5. Advertising by means of knowingly false or deceptive statements.
  6. Immoral and unprofessional conduct.
  7. When satisfied that any such person has violated any provision of this chapter.
  8. Repeated violations of the rules of the board governing the sanitary regulation of barbershops and barber schools.

Source:

S.L. 1901, ch. 30, § 12; R.C. 1905, § 361; C.L. 1913, § 570; S.L. 1927, ch. 101, § 15; 1943, ch. 92, § 3; 1943, ch. 93, § 8; R.C. 1943, § 43-0440; S.L. 1977, ch. 130, § 19; 2011, ch. 54, § 6.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-04-41. Revocation of certificate — Hearing.

The board may not refuse to issue, refuse to renew, suspend, or revoke any certificate of registration to practice barbering for any of the causes set forth in section 43-04-40 unless the person accused has been given a public hearing by the board. The person must be notified in writing of the charges against the person and of the time set for the hearing, which must be not less than twenty days after serving the notice. Upon the hearing of any such proceedings, the board may administer oaths and may procure by its subpoena the attendance of witnesses and the production of relevant books and papers. Any court in this state, upon application of the accused or the board, by order duly entered, may require the attendance of witnesses and the production of relevant books and papers at such hearing.

Source:

S.L. 1901, ch. 30, § 12; R.C. 1905, § 361; C.L. 1913, § 570; S.L. 1927, ch. 101, § 16; R.C. 1943, § 43-0441.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-04-42. Fees.

  1. The board may charge applicants the following fees:
    1. For examination and issuance of a certificate to practice master barbering, one hundred dollars.
    2. For renewal of a master barber’s certificate, one hundred dollars.
    3. For restoration of an expired master barber’s certificate, a twenty dollar penalty fee in addition to the regular renewal fee.
    4. For a permit to operate a barber school or college, an annual fee of one hundred twenty-five dollars.
    5. For issuance of an annual barbershop license, fifty dollars, to be paid by each shopowner in advance.
    6. For issuance of a certificate to an applicant who qualifies under section 43-04-38.1, one hundred seventy-five dollars.
    7. For restoration of an expired barbershop license, a twenty dollar penalty fee in addition to the annual license fee.
    8. For renewal of an instructor’s license, twenty-five dollars.
  2. Each application to open or establish a barbershop in this state must be accompanied by a fee of one hundred dollars to cover expenses of inspection, which must be retained by the board and deposited as other fees.
  3. A duplicate license, certificate, or permit must be issued upon:
    1. Filing a statement verified by the oath of the applicant which explains the loss;
    2. Submitting a signed photograph of the applicant; and
    3. Paying a fee of ten dollars for the issuance of the duplicate.
  4. Anyone who becomes a member of the armed forces of the United States in time of war, while holding a license as a barber or apprentice, and while in good standing as to payment of fees, may obtain a certificate restoration without payment of the restoration fee.

Source:

S.L. 1927, ch. 101, § 17; 1933, ch. 79, § 1; 1943, ch. 92, § 4; R.C. 1943, § 43-0442; S.L. 1947, ch. 295, § 1; 1957, ch. 294, § 3; 1957 Supp., § 43-0442; S.L. 1965, ch. 297, § 1; 1973, ch. 346, § 5; 1979, ch. 459, § 5; 1987, ch. 511, § 2; 1989, ch. 505, §§ 1, 2; 1997, ch. 363, § 2; 2011, ch. 306, § 1; 2017, ch. 285, § 8, effective August 1, 2017.

43-04-43. Barbershop — Regulations.

No person may use for the purpose of practicing barbering any room or place which also is used for:

  1. Residential purposes; or
  2. Any business purpose other than the sale of hair tonics, lotions, creams, cutlery, toilet articles, cigars, tobacco, candies in original package, and such other commodities as are used and sold in barbershops,

unless a substantial partition of ceiling height separates the portion used for residential or business purposes from the room used for barbering. A barbershop may be operated in conjunction with a beauty shop, shoe shining parlor, or agency for the reception and delivery of laundry without the separation thereof by a partition of ceiling height.

Source:

S.L. 1927, ch. 101, § 18; 1931, ch. 98, § 1, subs. 6; R.C. 1943, § 43-0443.

43-04-44. Inspection of barbershops and barber schools.

Any member of the board or any of its inspectors, agents, or assistants may enter and inspect any barbershop or barber school at any time during business hours.

Source:

S.L. 1927, ch. 101, § 22; R.C. 1943, § 43-0444.

43-04-45. Penalty.

Any person who shall:

  1. Violate any of the provisions of sections 43-04-21, 43-04-30, and 43-04-43;
  2. Permit any person in that person’s employ, supervision, or control to practice as a barber unless the person employed, supervised, or controlled has a certificate of registration as a registered barber;
  3. Obtain or attempt to obtain a certificate of registration by the payment of money other than the required fee, or any other thing of value, or by fraudulent misrepresentations;
  4. Practice or attempt to practice by fraudulent misrepresentations; or
  5. Willfully fail to display a certificate of registration as is required by this chapter,

is guilty of a class B misdemeanor. A violation of any provision of this chapter or of any rule, subpoena, or order of the board lawfully made pursuant hereto, except as otherwise provided herein, is a class B misdemeanor.

Source:

S.L. 1901, ch. 30, § 14; R.C. 1905, § 363; C.L. 1913, § 572; S.L. 1927, ch. 101, § 18; 1931, ch. 98, § 1; 1943, ch. 92, § 5; 1943, ch. 93, § 7; R.C. 1943, § 43-0445; S.L. 1975, ch. 106, § 471; 2017, ch. 285, § 9, effective August 1, 2017.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-04-46. Board may institute actions.

The board may institute such actions in the courts of competent jurisdiction as may appear necessary to enforce compliance with any provision of this chapter, or to enforce compliance with any rule, subpoena, or order of the board made pursuant to the provisions of this chapter, and, in addition to any other remedy, may apply to any district court of competent jurisdiction for relief by injunction.

Source:

S.L. 1943, ch. 93, § 7; R.C. 1943, § 43-0446.

43-04-47. Perjury — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

43-04-48. Appeals.

Any applicant or licensee aggrieved by any action of the board taken under any of the provisions of this chapter, within thirty days after receipt of a copy of the order of the board, may file a petition in the district court, which has jurisdiction to affirm, reverse, vacate, or modify the order complained of. The board of barber examiners of North Dakota must be the defendant, and such petition must set forth the errors complained of. Unless they are waived, citations and other judicial process must be served upon the president of the board, or in the event of the president’s absence, upon any member of the board, or by leaving a copy at the office of the board or the office of the secretary-treasurer. Upon such service or waiver, the board, with its answer, shall file a transcript of the records of the board, and the original papers or transcripts thereof, and a certified transcript of all evidence adduced upon the hearing before the board in the proceedings complained of, which must be filed in the court. No proceedings to vacate, reverse, or modify a final order rendered by the board may operate to stay the execution or effect thereof unless the district court, or a judge thereof in vacation, on application and three days’ notice to the board, shall allow such stay, in which event the petitioner must be required to execute the petitioner’s bond in such a sum as the court may prescribe, with sufficient surety to the satisfaction of the court, conditioned for the prompt payment of all damages arising from or caused by the delay in the effectiveness or enforcement of the order complained of.

Source:

S.L. 1943, ch. 93, § 8; R.C. 1943, § 43-0448.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Appeal to District Court.

This section makes no designation of the district court to which an appeal may be taken from a decision of the board of barber examiners; therefore such appeal must be taken to the district court of the county in which the hearing, or a part thereof, was held as provided by N.D.C.C. § 28-32-42. Wagner v. North Dakota Bd. of Barber Examiners, 186 N.W.2d 570, 1971 N.D. LEXIS 171 (N.D. 1971).

43-04-49. Deceptive acts — Barber poles.

A person may not advertise, hold out to the public, or represent in any manner that the person is authorized to practice barbering unless the person is authorized under this chapter to practice barbering or authorized to employ or lease space to a barber. A person not authorized to practice barbering or not authorized to employ or lease space to a barber may not place a barber pole in a location that would create or tend to create the impression to members of the general public that a business located near the barber pole is a barbershop unless the location of the barber pole is related to a business authorized to operate a barbershop. As used in this section, barber pole means a red, white, or blue striped vertical cylinder with a ball located on the top, bottom, or top and bottom of the cylinder, or any object or facsimile of similar nature, regardless of the actual shape or coloring, if the object or facsimile would tend to create an impression to members of the general public that a business located near the object is a barbershop.

Source:

S.L. 2007, ch. 358, § 1.

CHAPTER 43-05 Podiatrists

43-05-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of podiatric medicine.
  2. “Clinical residency” means a formal, structured postdoctoral training program approved by the board, which is sponsored by and conducted in an accredited institution approved by the board or conducted by a college of podiatric medicine accredited and approved by the council on podiatric medical education, American podiatric medical association, or other accrediting agency approved by the board. The term also includes a preceptorship approved by the board until January 1, 1995.
  3. “False or misleading statement or advertising” includes a statement, claim, or advertising that:
    1. Contains a misrepresentation of fact;
    2. Is likely to mislead or deceive because in context it makes only a partial disclosure of relevant facts;
    3. Is intended or is likely to create false or unjustified expectations of favorable results;
    4. Appeals to an individual’s anxiety in an excessive or unfair way;
    5. Contains material claims of superiority that cannot be substantiated;
    6. Misrepresents a podiatrist’s credentials, training, experience, or ability;
    7. Contains other representations or implications that in reasonable probability will cause an ordinary, prudent person to misunderstand or be deceived; or
    8. Represents that a manifestly incurable condition, sickness, disease, or injury can be cured.
  4. “Health care facility” means a medical hospital, skilled nursing care facility, intermediate care facility, basic care facility, boarding house, or swing-bed hospital approved to furnish long-term care service, or any other facility licensed to provide health care services.
  5. “Podiatric medicine” means :
    1. The medical and surgical treatment and diagnosis of ailments of the human foot, ankle, and other related soft tissue structures below the tibial tuberosity that govern the functions of the foot and ankle, not including extra articular osseous injuries above the distal metaphyseal scar. Podiatrists may treat and diagnose conditions of the foot and ankle by any medically accepted system or method necessary;
    2. The amputation of the toes, parts of the foot, or foot in its entirety, indicated as medically necessary;
    3. The use of such preparations, medicines, and drugs as may be necessary for the treatment of such ailments;
    4. The performance of history and physical examinations upon admitting patients to facilities where they are recognized with requisite credentials and privileges;
    5. That podiatrists may function as assistant surgeons in nonpodiatric procedures; and
    6. That podiatric medical residents working under a temporary permit may fully participate in rotations and assist and perform treatments and diagnosis beyond the foot and ankle, under appropriate supervision within an approved residency program as part of their medical surgical training.
  6. “Podiatrist” means a person who is qualified to practice podiatric medicine in this state.
  7. “Preceptorship” means a formal, structured postdoctoral training program approved by the board and conducted by a podiatrist primarily in an office setting and controlled and supervised by a college of podiatric medicine accredited by the council on podiatric medical education, American podiatric medical association, or another accrediting agency approved by the board.
  8. “Provider” means a licensed person, homecare provider, medical or health services clinic, hospital, or health care facility, organization, institution, or agency that furnishes health care services.

Source:

S.L. 1929, ch. 95, §§ 2, 3; 1935, ch. 100, § 1; R.C. 1943, § 43-0501; S.L. 1953, ch. 267, § 1; 1957, ch. 295, § 1; 1957 Supp., § 43-0501; S.L. 1963, ch. 302, § 1; 1975, ch. 396, § 1; 1977, ch. 397, § 1; 1991, ch. 450, § 1; 2015, ch. 286, § 1, effective August 1, 2015.

Notes to Decisions

False or Misleading Advertising.

Statement in podiatrist’s advertisement supported board of podiatric medicine’s finding he used misleading advertisements designed to lead reader to believe he possessed skills superior to those of orthopedic surgeons. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Collateral References.

Podiatry or chiropody statutes: validity, construction, and application, 45 A.L.R.4th 888.

43-05-02. Exceptions.

The provisions of this chapter do not apply to the following:

  1. Physicians and surgeons licensed by the North Dakota board of medicine.
  2. Physicians and surgeons of the United States armed forces and of the United States public health service.
  3. Duly licensed chiropractors.
  4. The sale of shoes or preformed arch supports in the stores of this state.

Source:

S.L. 1929, ch. 95, §§ 15, 15a; R.C. 1943, § 43-0502; S.L. 1975, ch. 396, § 2; 2015, ch. 297, § 13, effective August 1, 2015.

Cross-References.

Chiropractors, see N.D.C.C. ch. 43-06.

Medical doctors and osteopathic physicians, see N.D.C.C. ch. 43-17.

43-05-03. Board of podiatric medicine — Appointment of members — Term of office — Qualifications — Vacancies — Duties — Quorum — Records.

The board of podiatric medicine consists of six persons appointed by the governor for a term of four years each with the terms of office so arranged that no more than two terms expire on the thirteenth day of June of any year. A member of the board may not serve for more than two successive terms. A member may not be reappointed to the board after serving two successive terms unless at least two years have elapsed since the member last served on the board. Four members of the board must hold doctor of podiatric medicine degrees and must have practiced podiatric medicine in this state for at least two years before their appointment, one member must be a doctor of medicine who holds a doctor of medicine degree and has practiced in this state for at least two years before the appointment, and one member, who is designated as a public member, must be a resident of this state, be at least twenty-one years of age, and may not be affiliated with any group or profession that provides or regulates health care in any form.

A member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until a successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term. The board may employ and compensate attorneys, investigative staff, clerical assistants, or others to assist in the performance of the duties of the board.

A majority of the board constitutes a quorum to transact business, make any determination, or take any action. The board shall keep a record of its proceedings and of applications for licenses. Applications and records must be preserved for at least six years beyond the disposition of the application or record or the last annual registration of the licensee, whichever is longer.

Source:

S.L. 1929, ch. 95, § 3; R.C. 1943, § 43-0503; S.L. 1953, ch. 267, § 2; 1957 Supp., § 43-0503; S.L. 1975, ch. 396, § 3; 1991, ch. 450, § 2; 2001, ch. 364, § 1.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-05-04. Meetings — When held — Officers.

The board shall hold an annual meeting and at that meeting shall elect from its members a president, vice president, and secretary-treasurer. The president of the board or any two members of the board may call a special meeting at any time if written notice of the meeting is given to all the members. At any special meeting at which a quorum is present a waiver of the notice of the meeting may be executed in lieu of the original notice. The officers shall perform such duties as the board prescribes. If a member of the board is absent from two consecutive regular or special meetings, the board may declare that member’s position to be vacant. The governor shall fill all vacancies.

Source:

S.L. 1929, ch. 95, § 4; R.C. 1943, § 43-0504; S.L. 1991, ch. 450, § 3.

43-05-05. Secretary-treasurer — Bond — Allowance.

The secretary-treasurer of the board must be bonded for the faithful discharge of the duties of the office in the sum of not less than one thousand dollars. The secretary of the board shall receive such allowance for clerical and other expenses of the board as determined by the board.

Source:

S.L. 1929, ch. 95, § 5; R.C. 1943, § 43-0505; S.L. 1975, ch. 258, § 18; 1991, ch. 450, § 4.

43-05-06. Compensation of members of board.

Each member of the board shall receive fifty dollars per day for each day employed in the actual discharge of the duties of the board, and the member’s necessary expenses. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09.

Source:

S.L. 1929, ch. 95, § 12; R.C. 1943, § 43-0506; S.L. 1953, ch. 267, § 3; 1957 Supp., § 43-0506; S.L. 1991, ch. 450, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-05-07. Secretary-treasurer of board — Duties — Record — Reports.

The secretary-treasurer of the board shall have the following duties:

  1. Keep a full record of the proceedings of the board.
  2. Repealed by S.L. 1971, ch. 510, § 15.
  3. At such times as may be required by the board, furnish a complete statement of receipts and disbursements under oath, together with vouchers, receipts, and such other evidence of the receipts and disbursements as may be required by the board.

Source:

S.L. 1957, ch. 295, § 3; R.C. 1943, 1957 Supp., § 43-0507; S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-05-08. Rules and regulations — Board to make.

The board may make such rules and regulations not inconsistent with the provisions of this chapter as may be necessary to give it full force and effect.

Source:

S.L. 1929, ch. 95, § 17; R.C. 1943, § 43-0508.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-05-09. License to practice podiatry required.

  1. A person may not practice podiatric medicine unless that person first has obtained a license or permit to do so.
  2. A person may not do any of the following unless that person holds a valid license or permit:
    1. Advertise, hold out to the public, or represent in any manner that that person is authorized to practice podiatric medicine.
    2. Use the designation “doctor of podiatric medicine”, “podiatrist”, “D.P.M.”, “podiatric physician”, “chiropodist”, “foot specialist”, or “foot doctor”, or use any title, degree, letters, symbol, or words that would tend to lead the public to believe that that person is authorized to practice or assume duties incident to the practice of podiatric medicine.
  3. A license to practice podiatric medicine is effective for one year subject to the terms and conditions for renewal established by the board.

Source:

S.L. 1929, ch. 95, § 1; R.C. 1943, § 43-0509; S.L. 1975, ch. 396, § 4; 1991, ch. 450, § 6.

Collateral References.

Separate or continuing offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts as a separate or continuing offense, 99 A.L.R.2d 654.

43-05-10. Application — Examination fee.

To obtain a license to practice podiatric medicine, a person shall submit an application and any other documentation required by the board to the board in the manner prescribed by the board. The applicant shall submit evidence that the applicant has the required qualifications and shall pay to the board a fee of not more than five hundred dollars.

Source:

S.L. 1929, ch. 95, § 7; R.C. 1943, § 43-0510; S.L. 1953, ch. 267, § 4; 1957 Supp., § 43-0510; S.L. 1975, ch. 396, § 5; 1991, ch. 450, § 7.

43-05-11. Qualifications of licensee.

An applicant for a license to practice podiatric medicine must possess the following qualifications:

  1. Be at least eighteen years of age;
  2. Be of good moral character; and
  3. Be a graduate of a podiatric medical school approved by the board based upon its faculty, curriculum, facilities, accreditation by a recognized national accrediting organization approved by the board, and other relevant factors.

All persons holding a license to practice podiatric medicine in this state on July 1, 1991, continue to be eligible for a license to practice podiatric medicine under this chapter.

Upon renewal of any license, the board may require the applicant to show sufficient proof of continuing medical education since the last application, which may include seminars or podiatry meetings. The board may waive the continuing education requirements in case of illness or other extenuating circumstances.

An applicant for a license must not have engaged in conduct warranting disciplinary action against a licensee or permittee in this state or another state. The board may issue a license or permit to an applicant who has engaged in conduct warranting disciplinary action if the board determines that the public will be protected through the issuance of a license or permit with conditions and limitations considered appropriate by the board. Applicants graduating after July 1, 1991, from a podiatric medical school shall present to the board evidence of the successful completion of a program of clinical residency.

Source:

S.L. 1929, ch. 95, § 6; R.C. 1943, § 43-0511; S.L. 1953, ch. 267, § 5; 1957 Supp., § 43-0511; S.L. 1973, ch. 120, § 42; 1975, ch. 396, § 6; 1991, ch. 450, § 8.

43-05-11.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify an applicant from licensure under this chapter unless the board determines that the offense has a direct bearing upon an applicant’s ability to serve the public as a podiatrist, or determines that an applicant, following conviction of any offense, is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 20.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-05-12. Examination — Temporary permit.

  1. The board may issue a license or permit to an applicant who has received a passing score on each section of the national board of podiatric medical examiners licensing examination or such other licensing examination as determined by the board. The board shall determine the requirements for a passing score. An applicant shall appear in person before the board or its designated representative to complete an oral practical examination and show that the applicant satisfies the requirements for licensure. The board may accept a national clinical examination prepared and graded by the national board of podiatric medical examiners in lieu of the oral practical examination. The board may establish the procedures or requirements for the applicant’s personal presentation and the subject matter of the oral practical examination.
  2. The board may issue a temporary permit to practice podiatric medicine to a person engaged in a clinical residency or preceptorship for a period not to exceed twelve months if the person meets all the conditions and qualifications for licensure established by this chapter and rules of the board. The applicant for a temporary permit shall submit a fee of not more than two hundred fifty dollars, as determined by the board.

Source:

S.L. 1929, ch. 95, §§ 10, 11; R.C. 1943, § 43-0512; S.L. 1953, ch. 267, § 6; 1957 Supp., § 43-0512; S.L. 1975, ch. 396, § 7; 1991, ch. 450, § 9.

43-05-13. Re-examination when applicant fails in first examination.

Any applicant who fails the examination and is refused a license, within one year after such refusal, may be re-examined upon paying an additional fee of three hundred dollars. Only one re-examination exhausts the applicant’s privilege under the original application.

Source:

S.L. 1929, ch. 95, § 11; R.C. 1943, § 43-0513; S.L. 1953, ch. 267, § 7; 1957 Supp., § 43-0513; S.L. 1991, ch. 450, § 10.

43-05-14. When license issued without examination.

The board may issue a license without examination to a podiatrist of another state or Canadian province if:

  1. The other state or Canadian province grants like privileges to podiatrists of this state;
  2. The other state or Canadian province maintains equal statutory requirements for practicing podiatric medicine;
  3. The applicant pays a fee of not more than five hundred dollars as determined by the board;
  4. The applicant has been engaged legally in the active practice of podiatric medicine for at least two years immediately preceding the date of application;
  5. The applicant presents satisfactory evidence to the board indicating the current status of a license to practice podiatric medicine which has been issued by the proper agency in another state or Canadian province;
  6. The applicant has not had a license suspended or revoked, or has not engaged in conduct warranting or which would have warranted disciplinary action against a licensee if the conduct was committed in this state or elsewhere, or has not been subjected to disciplinary action in another state or Canadian province. If an applicant does not satisfy the requirements of this subsection, the board shall refuse to issue a license unless the board determines that the public will be protected through issuance of a license with conditions or limitations considered appropriate by the board; and
  7. The applicant submits with the application the following information for the five-year period before the date of filing the application:
    1. The name and address of the applicant’s professional liability insurance carrier in the other state or Canadian province; and
    2. The number, date, and disposition of any podiatric medical malpractice settlement or award made to the plaintiff relating to the quality of podiatric medical treatment.

Source:

S.L. 1929, ch. 95, § 9; R.C. 1943, § 43-0514; S.L. 1975, ch. 396, § 8; 1991, ch. 450, § 11.

43-05-15. Renewal of license — Fee — Established by board — Failure to pay — Reinstatement.

Each licensed and practicing podiatrist shall pay the annual renewal license fee established by the board. The license fee may be increased in accordance with the number of years licensed and practicing in North Dakota, but may not exceed seven hundred fifty dollars. The fee must be paid on or before the renewal date established by the board. The person is entitled to an annual certificate or license upon payment of the fee. If the renewal fee is not paid within six months after the date established by the board, the license of the delinquent licensee must be considered expired and may be revoked and may not be reissued except upon a new application and the payment of the renewal fee established by the board plus the late fee established by the board not to exceed two hundred fifty dollars and the costs of any hearing held concerning revocation of a license for nonpayment.

Source:

S.L. 1929, ch. 95, § 13; R.C. 1943, § 43-0515; S.L. 1957, ch. 295, § 2; 1957 Supp., § 43-0515; S.L. 1963, ch. 303, § 1; 1975, ch. 396, § 9; 1991, ch. 450, § 12; 2013, ch. 318, § 1; 2015, ch. 287, § 1, effective August 1, 2015.

43-05-16. Grounds for disciplinary action.

  1. The board may refuse to grant a license or permit or may impose disciplinary action as described in this chapter against any podiatrist. The following conduct, whether occurring in this state or elsewhere, is prohibited and is a basis for disciplinary action:
    1. Failure to demonstrate the qualification or satisfy the requirements for a license or permit under this chapter or rules of the board.
    2. Obtaining a license or permit by fraud or cheating or attempting to subvert the licensing or permit examination process, the use of any false, fraudulent, or forged statement or document, or the use of any fraudulent, deceitful, dishonest, or immoral practice in connection with any of the license or permit requirements.
    3. Conviction, during the previous five years, of a misdemeanor or felony reasonably related to the practice of podiatric medicine, or determined by the board to have a direct bearing upon a person’s ability to serve the public as a podiatrist. A license may not be withheld contrary to chapter 12.1-33.
    4. Revocation, suspension, restriction, limitation, or other disciplinary action against the person’s podiatric medical license in another state or jurisdiction, failure to report to the board that charges regarding the person’s license have been brought in another state or jurisdiction, or failure to report to the board that the person has been refused a license by another state or jurisdiction.
    5. Advertising that is false or misleading, or the making of any false or misleading statement about the podiatrist’s skill, training, experience, or ability or the efficacy of any treatment or remedy.
    6. Violating a rule adopted by the board; an order of the board; any provision of this chapter; any action, stipulation, condition, or agreement imposed by the board; a state or federal law that relates to the practice of podiatric medicine; or a state or federal narcotics or controlled substance law.
    7. Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm the public; demonstrating a willful, careless, or negligent disregard for the health, welfare, or safety of a patient; or podiatric medical practice that is professionally incompetent, in that it may create unnecessary danger to any patient’s life, health, or safety regardless of whether an actual injury is proved.
    8. Failure to supervise a preceptor or resident.
    9. Aiding or abetting an unlicensed, incompetent, or impaired person in the practice of podiatric medicine.
    10. Adjudication by a court of competent jurisdiction as mentally incompetent, mentally ill, chemically dependent, a person dangerous to the public, or a person who has a psychopathic personality.
    11. Engaging in unprofessional conduct that includes any departure from or the failure to conform to the minimal standards of acceptable and prevailing podiatric medical practice.
    12. Inability to practice podiatric medicine with reasonable skill and safety to patients because of physical or mental illness, a substance use disorder, or as a result of any mental or physical condition or disability.
    13. Revealing a privileged communication from or relating to a patient except when otherwise required or permitted by law.
    14. Improper management of medical records.
    15. Accepting, paying, or promising to pay a part of a fee in exchange for patient referrals; obtaining any fee by fraud, deceit, or misrepresentation; or paying or receiving, directly or indirectly, any fee, commission, rebate, or other compensation for services not actually or personally rendered, except for the lawful distribution of compensation or fees within a professional partnership, corporation, or association.
    16. Engaging in abusive or fraudulent billing practices.
    17. Habitual use of, or becoming addicted or habituated to, alcohol or drugs.
    18. Prescribing, administering, or distributing a drug for other than medically accepted therapeutic purposes, experimental, or investigative purposes authorized by a state or federal agency.
    19. Engaging in sexual misconduct, sexual abuse, or exploitation with or of a patient; conduct that may reasonably be interpreted by the patient as sexual; or in verbal behavior which is seductive or sexually demeaning to a patient.
    20. The failure to furnish the board or representatives information legally requested by the board.
    21. A continued pattern of inappropriate care as a podiatrist.
    22. The practice of podiatric medicine under a false or assumed name other than a partnership name containing the names of one or more of the licensed partners.
    23. Maintaining a professional office in conjunction or relation with any business not engaged in the practice of the medical sciences.
    24. Treating any disease, sickness, illness, malady, or defect that is outside the scope of the practice of podiatric medicine.
  2. In disciplinary actions alleging a violation of subdivision c or d of subsection 1, a copy of the judgment or proceeding under the seal of the clerk of court or of the administrative agency that entered the judgment or proceeding is admissible into evidence without further authentication and constitutes prima facie evidence of the contents of that judgment or proceeding.
  3. The board shall keep a record of all of its proceedings in the matter of suspending, revoking, or refusing licenses or permits together with the evidence offered.

Source:

S.L. 1929, ch. 95, § 14; R.C. 1943, § 43-0516; S.L. 1953, ch. 267, § 8; 1957 Supp., § 43-0516; S.L. 1975, ch. 396, § 10; 1977, ch. 130, § 21; 1991, ch. 450, § 13; 1997, ch. 364, § 1; 2019, ch. 225, § 13, effective August 1, 2019.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Notes to Decisions

False or Misleading Advertising.

Statement in podiatrist’s advertisement supported board of podiatric medicine’s finding he used misleading advertisements designed to lead reader to believe he possessed skills superior to those of orthopedic surgeons. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Malpractice.

Subdivision (1)(k) authorizes the board of podiatric medicine to discipline podiatrist for a single instance of failing to conform to minimal standards of acceptable and prevailing podiatric medical practice, and the record supported board’s finding treatment of patient failed to conform to such standards. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Notice.

Although minutes of board of podiatric medicine’s meeting authorized charges against podiatrist for “malicious” advertising, formal complaint alleging he had engaged in advertising that was “false or misleading” provided him with notice of the charges against him. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-05-16.1. Forms of disciplinary action — Dates — Automatic suspensions — Reissuance.

When the board finds, pursuant to chapter 28-32, that a podiatrist has violated this chapter or a rule of the board, the board may do one or more of the following:

  1. Revoke the license or permit.
  2. Suspend the license or permit.
  3. Institute probation with or without any of the following terms:
    1. Impose limitations or conditions on the podiatrist’s practice of podiatric medicine.
    2. Impose retraining or rehabilitation requirements.
    3. Require practice under supervision.
    4. Condition the continued practice on demonstration of knowledge or skills by an appropriate examination or other review of skill and competence.
  4. Impose a civil penalty not exceeding ten thousand dollars for each violation, the amount of the civil penalty fixed so as to deprive the podiatrist of any economic advantage gained by the violation or to reimburse the board for attorney’s fees and the cost of the investigation and proceeding.
  5. Order the podiatrist to provide unremunerated professional service under supervision at a designated public hospital, nursing home, clinic, or other health care facility or institution.
  6. Reprimand the podiatrist.
  7. Censure the podiatrist.
  8. Send the podiatrist a letter of concern.

Source:

S.L. 1991, ch. 450, § 14; 1997, ch. 364, § 2.

43-05-16.2. Suspension or revocation of license.

  1. In addition to any other remedy provided by law, the board may, without a hearing, temporarily suspend the license or permit of a podiatrist if the board finds as a matter of probable cause based on verified evidence that the podiatrist has violated this chapter or a rule of the board and that continued practice by the podiatrist would create or be likely to result in a serious and imminent risk of harm to the public. The ex parte temporary suspension order is effective upon written notice to the podiatrist, specifying the law or rule violated. The ex parte temporary suspension remains in effect until the board issues a final order in the matter after a hearing unless otherwise ordered by a district court. When the board issues the ex parte temporary suspension notice, the board shall schedule a disciplinary hearing to be held pursuant to chapter 28-32. The hearing must be scheduled to begin no later than sixty days after the issuance of the ex parte temporary suspension. Within three days after the issuance of the ex parte suspension order, the board shall serve the podiatrist with a copy of the order along with a copy of the complaint and notice of the date set for the full hearing. The podiatrist may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of this appeal, the district court shall decide whether probable cause reasonably requires the temporary suspension to adequately protect the public interests. The court shall give priority to the appeal for prompt disposition thereof. Unless ordered by the district court, an appeal by the podiatrist of the ex parte temporary suspension order does not stay the effectiveness or validity of the ex parte temporary suspension.
  2. A suspension, revocation, condition, limitation, qualification, or restriction of a license or permit is in effect pending determination of an appeal unless the court, upon petition and for good cause shown, otherwise orders.
  3. A license or permit to practice podiatric medicine is automatically suspended if a guardian of the person of a licensee or permittee is appointed by order of a court under chapter 30.1-28 or other similar provisions in this state or elsewhere for reasons other than the minority of the licensee or permittee, or the licensee or permittee is committed by order of a court under chapter 25-03.1 or other similar provisions of law in this state or elsewhere. The license or permit remains suspended until the licensee or permittee is restored to capacity by a court and, upon petition by the licensee or permittee, the suspension is terminated by the board after a hearing.
  4. The board may restore and reissue a license or permit to practice podiatric medicine and may impose as a condition of the license or permit any disciplinary or corrective measure.
  5. The board may revoke the license of any podiatrist who fails to renew a license. A revocation may occur after six months from the date when all renewal fees and other conditions must be paid or completed and be in effect before any hearing upon written notice to the podiatrist of the revocation. A hearing must be held within sixty days of the service of the notice of revocation upon the podiatrist.

Source:

S.L. 1991, ch. 450, § 15.

43-05-16.3. Powers of the board — Podiatrist cooperation.

  1. In investigating a podiatrist under this section, the board may subpoena the podiatrist and medical records relating to the practice of the podiatrist under investigation. The confidentiality of the subpoenaed records under any other law does not affect the validity of the board’s subpoena nor the admissibility of the records in board proceedings; however, the proceedings and records of the board which are exempt from subpoena, discovery, or introduction into evidence under chapter 23-34 are not subject to this subsection. Records of the board which are medical records subpoenaed under this subsection are confidential.
  2. A podiatrist or applicant for license under this chapter who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any question raised by the board relating to the subject of the investigation and providing copies of patient medical records or other documentation to assist the board in its investigation. The board shall pay for the copies requested. Except in the case of subpoenaed records, if the board does not have written consent from a patient permitting access to the patient’s records, the podiatrist or applicant for license shall delete any data in the record that identifies the patient before providing the record to the board.
  3. The board may subpoena witnesses relating to the practice of any podiatrist under investigation.
  4. The board may employ independent investigators when necessary.
  5. The board may hold confidential conferences with any complainant or podiatrist with respect to any complaint.
  6. If the board determines a violation of section 43-05-16 may have occurred, the board may issue a formal complaint against a licensed podiatrist.

Source:

S.L. 1991, ch. 450, § 16; 2013, ch. 318, § 2; 2015, ch. 288, § 1, effective August 1, 2015.

43-05-16.4. Mental examination — Access to medical data.

  1. If the board has probable cause to believe that a podiatrist or applicant for license falls within the provisions of subdivision l or q of subsection 1 of section 43-05-16, it may direct the podiatrist or applicant for license to submit to a mental or physical examination or an addiction evaluation. A podiatrist licensed or permitted under this chapter or an applicant for a license is considered to have consented to submit to a mental or physical examination or an addiction examination when directed in writing by the board and to have waived all objections to the admissibility of the examiner’s testimony or examination reports on the ground that the examination constitutes a privileged communication. The failure of a podiatrist or applicant for a license to submit to an examination when directed constitutes an admission of the allegations against the podiatrist or applicant for license and a default and final order may be entered without the taking of testimony or presentation of evidence unless the failure was due to circumstances beyond the podiatrist’s or applicant’s control. A podiatrist or applicant for a license must, at reasonable intervals, be given an opportunity to demonstrate that the podiatrist or applicant can resume or commence the competent practice of podiatric medicine with reasonable skill and safety to patients. In a proceeding under this subsection, neither the record of proceedings nor the orders entered by the board may be used against a podiatrist or applicant in any other proceeding.
  2. In addition to ordering a physical or mental examination or an addiction evaluation, the board may, notwithstanding any law to the contrary, obtain medical data and health records relating to a licensee or applicant without the licensee’s or applicant’s consent if the board has probable cause to believe that the podiatrist or applicant falls within the provisions of subdivision l or q of subsection 1 of section 43-05-16. The medical data may be requested from a provider, an insurance company, or a government agency. A provider, insurance company, or government agency shall comply with a written request of the board under this section and is not liable in any action for damages for releasing the data requested by the board if the data are released in accordance with a written request under this section unless the information is false and the provider giving the information knew or had reason to believe the information was false.

Source:

S.L. 1991, ch. 450, § 17; 2019, ch. 225, § 14, effective August 1, 2019.

43-05-16.5. Reporting obligations.

  1. A person who has knowledge of any conduct constituting grounds for discipline under this chapter shall report the violation to the board.
  2. A hospital, clinic, or other health care institution, facility, or organization shall report to the board any action taken by the hospital, clinic, or other health care facility, institution, or organization to revoke, suspend, restrict, or condition a podiatrist’s privilege to practice or treat patients in the hospital, clinic, or other health care facility or institution, or as part of the organization, any denial of privileges or any other disciplinary action. The hospital, clinic, or other health care facility, institution, or organization shall also report the resignation of any podiatrist before the conclusion of any disciplinary proceeding or before the commencement of formal charges but after the podiatrist had knowledge that formal charges were contemplated or in preparation. No report is required of a podiatrist voluntarily limiting practice at a hospital if the podiatrist notifies all hospitals at which the podiatrist has privileges of the voluntary limitation and the reasons for it.
  3. Four times a year, as prescribed by the board, each insurer providing professional liability insurance to podiatrists shall submit to the board a report concerning any podiatrist against whom podiatric medical malpractice settlements or awards have been made. The report must contain at least the following information:
    1. The total number of podiatric malpractice settlements or awards made to the plaintiff.
    2. The date the podiatric malpractice settlements or awards to the plaintiff were made.
    3. The allegations contained in the claim or complaint leading to the settlements or awards made to the plaintiff.
    4. The dollar amount of each podiatric malpractice settlement or award.
    5. The regular address of the practice of the podiatrist against whom an award was made or with whom a settlement was made.
    6. The name of the podiatrist against whom an award was made or with whom a settlement was made.
  4. The clerks of court of the district courts or any other court of competent jurisdiction shall report to the board any judgment or other determination of the court that adjudges or includes a finding that a podiatrist is mentally ill; mentally incompetent; chemically dependent; guilty of a felony; guilty of a violation of federal or state narcotics laws or controlled substances acts; guilty of an abuse or fraud under Medicare, Medicaid, or medical assistance laws or rules; appoints a guardian of the podiatrist; or provides for the civil commitment of a podiatrist.
  5. Reports required by this section must be submitted no later than thirty days after the occurrence of the reportable event or transaction. The board may provide forms for the submission of reports required by this section, may require that reports be submitted on the forms provided, and may adopt rules necessary to assure prompt and accurate reporting.

In addition, the insurance company shall report to the board any information it has that tends to substantiate a charge that a podiatrist may have engaged in conduct prohibited under this chapter.

Source:

S.L. 1991, ch. 450, § 18; 1997, ch. 364, § 3.

43-05-16.6. Board immunity and privileged communications.

  1. No member of the board, its committees, its employees, or its staff is liable for civil damages or subject to criminal prosecution for any action undertaken or performed within the scope of the functions of the board when acting without malice or gross negligence and in the reasonable belief the action was warranted.
  2. Every communication, oral or written, made by or on behalf of any person, institution, agency, or organization to the board or to any person designated by the board to investigate or otherwise hear matters relating to any disciplinary action, is privileged. No action or proceeding, civil or criminal, is permitted against any person, institution, agency, or organization for submitting a report to the board under section 43-05-16.5. For any report or communication not required by section 43-05-16.5, no action or proceeding, civil or criminal, is permitted against a person, institution, agency, or organization, except upon proof that the communication or report was made with malice.
  3. The protections afforded in this section do not prohibit a respondent or a respondent’s legal counsel from exercising the respondent’s constitutional right of due process under the law, or as prohibiting the respondent from normal access to the charges and evidence filed against the respondent as part of due process under the law.

Source:

S.L. 1991, ch. 450, § 19.

43-05-16.7. Costs of prosecution — Disciplinary proceedings.

In any order or decision issued by the board in resolution of a disciplinary proceeding in which disciplinary action is imposed against a podiatrist, the board may direct the podiatrist to pay the board a sum not to exceed the reasonable and actual costs, including attorney’s fees, incurred by the board in the investigation and prosecution of the case. When applicable, the podiatrist’s license may be suspended until the costs are paid to the board.

Source:

S.L. 2001, ch. 364, § 2.

43-05-16.8. Loan for litigation expenses.

Subject to approval by the emergency commission, the board may borrow funds sufficient to pay for attorney’s fees and costs incurred in investigations, administrative proceedings, and litigation resulting from the board performing its duties. Notwithstanding section 43-05-15, the board may establish an annual renewal license fee for each year following the issuance of a loan under this section, and the fee must be maintained until the loan is fully repaid, including any accrued interest. The amount of the annual renewal license fee assessed under this section may not exceed one thousand five hundred dollars. Once the loan is paid in full, the annual renewal license fee must revert to the amount established by the board before the issuance of the loan. The notice of a proposed rule to assess the fee in this section or revert to the previous license fee may be sent by certified mail to each individual licensed by the board in lieu of the publication requirements for the notice in chapter 28-32.

Source:

S.L. 2001, ch. 365, § 1; 2015, ch. 287, § 2, effective August 1, 2015.

43-05-17. Penalty.

A person violating any provision of this chapter for which another penalty is not provided is guilty of a class B misdemeanor. In addition, the civil remedy of injunction is available to the board to restrain and enjoin any violation of this chapter without the need to prove actual damages to any person.

Source:

S.L. 1929, ch. 95, § 16; R.C. 1943, § 43-0517; S.L. 1975, ch. 396, § 11; 1991, ch. 450, § 20.

Cross-References

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-06 Chiropractors

43-06-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Approved and accredited doctor of chiropractic program” means a doctor of chiropractic program approved by the board and accredited by a board-approved entity, such as the council on chiropractic education or its successor or equivalent.
  2. “Board” means the state board of chiropractic examiners.
  3. “Certified chiropractic clinical assistant” means an individual certified by the board who in accordance with section 43-06-16.1 assists with basic health care duties in the practice of chiropractic under the supervision of a licensed doctor of chiropractic in good standing with the board.
    1. “The practice of chiropractic” includes:
      1. The examination, evaluation, and diagnosis by means including x-ray, other appropriate diagnostic imaging, clinical laboratory procedures, or pertinent examinations taught by chiropractic colleges accredited by the council on chiropractic education or its successor or equivalent;
      2. The treatment of patients by means of the adjustment or manipulation of the spinal column, the vertebral articulations, the appendicular skeleton not excluding the skull, and of any displaced tissue of any kind or nature;
      3. The practice of physiotherapy, electrotherapy, or hydrotherapy;
      4. All other procedures, treatments, and interventions taught by chiropractic colleges accredited by the council on chiropractic education or its successor;
      5. The rating and reporting of any permanent impairment of function and the providing of professional opinions regarding any matter included in this definition of practice of chiropractic as set out herein;
      6. Delegation of basic health care duties in the practice of chiropractic to a certified chiropractic clinical assistant; and
      7. Telehealth.
    2. The practice of chiropractic does not include prescribing for, removal of, or administering to any person any medicine or drug to be taken internally which is now or hereafter included in materia medica, nor performing any surgery, except as is provided in this section, nor practicing obstetrics.
  4. “Telehealth” means the use of electronic communications to provide and deliver chiropractic-related information and chiropractic services, including chiropractic-related information and services, over any distance. Telehealth encompasses chiropractic care and chiropractic promotion activities, including education, advice, reminders, interventions, and the monitoring of interventions.

Source:

S.L. 1915, ch. 228, § 4; 1925 Supp., § 523a4; S.L. 1933, ch. 82, § 2; R.C. 1943, § 43-0601; S.L. 1989, ch. 506, § 1; 1991, ch. 451, § 1; 2015, ch. 289, § 1, effective August 1, 2015; 2017, ch. 286, § 2, effective August 1, 2017; 2021, ch. 307, § 1, effective July 1, 2021.

Notes to Decisions

Practice of Medicine.

Permitting chiropractor to give opinion on reasonable “medical” certainty as to permanancy of vertebral injury was not error since practice of chiropractic is the practice of medicine, although in a restricted form. Klein v. Harper, 186 N.W.2d 426, 1971 N.D. LEXIS 180 (N.D. 1971).

Collateral References.

Competency as expert in personal injury action as to injured person’s condition, medical requirements, nature and extent of injury, and the like, 52 A.L.R.2d 1384.

Scope of practice of chiropractic, 16 A.L.R.4th 58.

Liability of chiropractors and other drugless practitioners for medical malpractice, 77 A.L.R.4th 273.

43-06-02. Who is exempt from the provisions of this chapter.

This chapter does not apply to:

  1. Chiropractors from the District of Columbia, or other states, territories, or countries who are in actual consultation in this state.
  2. Students enrolled in an approved and accredited doctor of chiropractic program, who qualify for the preceptorship program. Under this exception:
    1. The student shall perform the duties of an intern under the supervision of a chiropractor licensed in the state of North Dakota.
    2. The student and the licensed chiropractor shall meet the requirements established for the preceptorship by an approved and accredited doctor of chiropractic program and must be approved by the program and by the board.
  3. A graduate of a program who has not completed the examination requirements in section 43-06-10.1 who applies for a graduate internship under this exception:
    1. The graduate, under the supervision of a North Dakota licensed chiropractor, shall perform the duties of an intern.
    2. The graduate shall submit an initial application for North Dakota licensure.
    3. The graduate must be sponsored by a chiropractor with a current and valid North Dakota license in good standing, including no active complaints, with at least three years of experience.
    4. The graduate and the licenseholder shall provide proof of malpractice insurance.
    5. The graduate intern authorization granted by the board terminates within fifteen months from the date issued by the board.
  4. Nothing in this chapter is to be construed to impinge upon the practice of medicine by a physician and surgeon or an osteopathic physician and surgeon who has adequate training in the use of manipulative and adjustive procedures of the spine and appendicular skeleton.
  5. A chiropractor who is licensed in another jurisdiction of the United States or credentialed to practice chiropractic in another country if that chiropractor is teaching, demonstrating, or providing chiropractic in connection with teaching or participating in an educational seminar in the state for no more than sixty days in a calendar year.
  6. A chiropractor who is licensed in another jurisdiction of the United States or credentialed to practice chiropractic in another country if that chiropractor is practicing chiropractic in North Dakota as a member of the health care team for a sports, cultural, or performing arts group. Treatment may only be performed on members of the team or group the chiropractor is traveling with, for no more than sixty days in a calendar year.

Source:

S.L. 1915, ch. 228, § 7; 1925 Supp., § 523a7; R.C. 1943, § 43-0602; S.L. 1983, ch. 472, § 1; 1989, ch. 506, § 2; 2015, ch. 289, § 2, effective August 1, 2015; 2021, ch. 307, § 2, effective July 1, 2021.

43-06-03. State board of chiropractic examiners — Members — Appointment — Qualifications.

  1. The state board of chiropractic examiners consists of seven members appointed by the governor. The members are:
    1. Five doctors of chiropractic;
    2. One certified chiropractic clinical assistant; and
    3. One consumer member.
  2. Each doctor of chiropractic appointed must:
    1. Have a license to practice chiropractic in North Dakota.
    2. Have been a resident of this state and have practiced chiropractic in this state for at least five consecutive years immediately before appointment to the board.
    3. Remain a resident of this state and continue in active practice in this state during the term of office.
    4. Be a licensee in good standing and must not be the subject of a pending investigation by the board for violations under this chapter.
  3. Each certified chiropractic clinical assistant appointed must:
    1. Be certified as a chiropractic clinical assistant and meet the requirements of section 43-06-16.1.
    2. Be actively engaged in the practice of a certified chiropractic clinical assistant in the state for at least one year immediately preceding appointment to the board.
  4. Each consumer member appointed:
    1. Must be a resident of the state for at least five years immediately preceding appointment to the board.
    2. May not have personal or familial financial relationships to the chiropractic profession.
    3. May not be, and may not be a spouse of, a doctor of chiropractic, certified chiropractic clinical assistant, or licensed health care professional.
  5. An individual appointed to the board as a certified chiropractic clinical assistant may not participate in any activities related to the clinical examination of chiropractic licensure applicants.
  6. An individual appointed to the board as a consumer may not participate in any activities related to the clinical examination of chiropractic or certified chiropractic clinical assistant licensure applicants.

Source:

S.L. 1915, ch. 228, § 1; 1925 Supp., § 523a1; R.C. 1943, § 43-0603; S.L. 1989, ch. 506, § 3; 2019, ch. 342, § 1, effective August 1, 2019.

Note.

Section 3 of chapter 342, S.L. 2019 provides, “ APPLICATION. This Act applies to appointments made to the board of chiropractic examiners after July 31, 2019.”

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-06-04. Board of chiropractic examiners — Members — Term of office.

  1. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office for a term of five years and until the member’s successor is appointed and qualified. The terms of office of the members of the board must be so arranged that only one term expires on the thirty-first day of August of any year except:
    1. Every fifth year, the governor shall appoint a doctor of chiropractic and a certified chiropractic clinical assistant to the board.
    2. One year after the appointments in subdivision a, the governor shall appoint a doctor of chiropractic and a consumer member to the board.
  2. A member may not serve for more than two consecutive five-year terms.
  3. If a member of the board is absent from two consecutive regular meetings, the board may declare a vacancy. Vacancies on the board must be filled by appointment by the governor.

Source:

S.L. 1915, ch. 228, § 1; 1925 Supp., § 523a1; R.C. 1943, § 43-0604; S.L. 1989, ch. 506, § 4; 2019, ch. 342, § 2, effective August 1, 2019; 2021, ch. 307, § 3, effective July 1, 2021.

Note.

Section 3 of chapter 342, S.L. 2019 provides, “ APPLICATION. This Act applies to appointments made to the board of chiropractic examiners after July 31, 2019.”

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-06-04.1. Powers and duties of board.

  1. The board shall administer the provisions of this chapter and the administrative rules of the board relating to the practice of chiropractic. The board has all powers, rights, and duties as provided in chapter 28-32.
  2. The board shall verify the qualifications of applicants for licenses to practice chiropractic and of applicants for certification to practice as a certified chiropractic clinical assistant. The board shall examine and renew the licenses or certification of duly qualified applicants.
  3. The board shall regulate the practice of chiropractic and shall enforce the provisions of this chapter and the rules of the board. The board shall investigate complaints of violations and cause the prosecution of persons violating the provisions of this chapter or the administrative rules of the board.
  4. The board may appoint a peer review committee and employ personnel and incur expenses as may be necessary for the performance of the board’s duties and the enforcement of this chapter.
  5. The board may inspect upon probable cause, at all reasonable times, any chiropractic office or place where chiropractic services are performed.
  6. The board may set fees for licensure and renewal.
  7. The board may adopt and amend rules and regulations, consistent with this chapter governing the practice of chiropractic and the diagnosis and treatment of patients, the enforcement of this chapter, and proper performance of the board’s duties, including:
    1. A code of ethical conduct governing the practice of chiropractic.
    2. Requirements, standards, and examinations to determine the intellectual, educational, scientific, technical, and professional qualifications of applicants for license or certification.
    3. Matters pertaining to the content and conduct of examination.
    4. Matters pertaining to the operation and registration of chiropractic facilities.
    5. Matters pertaining to the practice and certification of chiropractic specialties by licensed doctors of chiropractic.
    6. The quantity, type, and character of postgraduate study to be done by any licensee in order to comply with this chapter.
    7. Set policies and procedures on what constitutes professional or unprofessional conduct.
    8. Any other rules or regulations as may be necessary to give this chapter full force and effect.

Source:

S.L. 1989, ch. 506, § 5; 2015, ch. 289, § 3, effective August 1, 2015; 2017, ch. 286, § 3, effective August 1, 2017; 2021, ch. 307, § 4, effective July 1, 2021.

43-06-05. Meetings of board — When held — Place of meeting — Quorum — Officers — Seal — Compensation — Expenses — How paid.

The board shall hold regular meetings twice yearly at approximate six-month intervals and such special meetings as the board may deem necessary. The meetings must be held at such places as the board may designate. Four members of the board constitute a quorum. At the first meeting of the board of each calendar year, the members of the board shall elect from their membership a president, vice president, and secretary-treasurer. Each shall hold office for one year and until a successor is elected and qualified. The board shall have a seal and may adopt appropriate rules necessary to carry out the provisions of this chapter. A member of the board shall receive compensation in an amount to be fixed by regulation of the board for each day or portion of a day spent in the discharge of duties, such mileage as is provided by section 54-06-09, and must be reimbursed for actual and necessary expenses incurred in the discharge of official duties in accordance with section 44-08-04. In addition to the compensation, expenses, and mileage, the secretary-treasurer of the board is entitled to receive such salary as must be fixed by a resolution of the board adopted at a regular meeting.

Source:

S.L. 1915, ch. 228, § 2; 1925 Supp., § 523a2; R.C. 1943, § 43-0605; S.L. 1983, ch. 472, § 2; 2015, ch. 289, § 4, effective August 1, 2015; 2021, ch. 307, § 5, effective July 1, 2021.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-06-06. Fund — How disbursed — Where deposited. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-06-07. Records of the board.

  1. The board shall keep a record of all its proceedings and a register of applications for licenses to practice chiropractic showing:
    1. The name and location of the institution from which each applicant received the applicant’s degree of doctor of chiropractic.
    2. The date when the degree of doctor of chiropractic was granted.
    3. Whether the applicant was licensed or rejected.
  2. The board shall maintain a register of certified chiropractic clinical assistants. A register is prima facie evidence of all matters recorded in the register.

Source:

S.L. 1915, ch. 228, § 2; 1925 Supp., § 523a2; R.C. 1943, § 43-0607; 2017, ch. 286, § 4, effective August 1, 2017.

43-06-08. License required — Application — Examination required — Fee.

A person may not practice chiropractic in this state unless that person has a license from the state board of chiropractic examiners. A person who desires a license shall:

  1. Apply to the board;
  2. Submit an official transcript of successful completion of all required examinations;
  3. Submit an official transcript and diploma from an approved and accredited doctor of chiropractic program. The applicant may submit an application while the applicant is enrolled in the applicant’s last term but the board may not issue a license until the applicant has graduated and has provided the board with an official transcript and diploma as provided in this section; and
  4. Pay to the board a fee, to be determined by the board from time to time, of an amount not to exceed five hundred dollars.

Source:

S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0608; S.L. 1965, ch. 298, § 1; 1983, ch. 472, § 3; 1989, ch. 506, § 6; 2013, ch. 319, § 1; 2015, ch. 289, § 5, effective August 1, 2015; 2021, ch. 307, § 6, effective July 1, 2021.

43-06-09. Chiropractor — Qualifications.

An applicant for licensure to practice chiropractic in this state must have a degree from or be enrolled in the last term of college at an approved and accredited doctor of chiropractic program.

Source:

S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0609; S.L. 1965, ch. 298, § 2; 1983, ch. 472, § 4; 1989, ch. 506, § 7; 2015, ch. 289, § 6, effective August 1, 2015; 2021, ch. 307, § 7, effective July 1, 2021.

43-06-09.1. Conviction not bar to licensure or certification — Exceptions.

Conviction of an offense does not disqualify a person from licensure or certification under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a chiropractor or certified chiropractic clinical assistant, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 22; 2017, ch. 286, § 5, effective August 1, 2017.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-06-10. Examination — Subjects covered. [Repealed]

Source:

S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0610; S.L. 1983, ch. 472, § 5; 1989, ch. 506, § 8; repealed by 2021, ch. 307, § 14, effective July 1, 2021.

43-06-10.1. National board examination.

The board shall accept all parts of the national board examination, or its successor or equivalent, providing all other requirements are met.

Source:

S.L. 1983, ch. 472, § 6; 1989, ch. 506, § 9; 2015, ch. 289, § 7, effective August 1, 2015; 2021, ch. 307, § 8, effective July 1, 2021.

43-06-11. License — When issued — Who issues — Title used by licensed chiropractor.

A license to practice chiropractic in this state must be issued by the board to an applicant who has submitted proof of the required qualifications and passed the required examination. A license to practice chiropractic may not be granted except upon the affirmative vote of at least a quorum of the board. A licensed chiropractor may use the title doctor of chiropractic, chiropractor, chiropractic physician, or D.C.

Source:

S.L. 1915, ch. 228, §§ 2, 4; 1925 Supp., §§ 523a2, 523a4; S.L. 1933, ch. 82, § 2; R.C. 1943, § 43-0611; S.L. 1957, ch. 296, § 1; 1957 Supp., § 43-0611; S.L. 1965, ch. 298, § 3; 1989, ch. 506, § 10; 2021, ch. 307, § 9, effective July 1, 2021.

43-06-11.1. Criminal history record checks.

The board may require any applicant, licensee, or certificate holder under this chapter to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a criminal history record check are the responsibility of the applicant, licensee, or certificate holder.

Source:

S.L. 2011, ch. 94, § 2; 2017, ch. 286, § 6, effective August 1, 2017.

43-06-12. Re-examination — Fee. [Repealed]

Source:

R.C. 1943, § 43-0612; S.L. 1983, ch. 472, § 7; 1989, ch. 506, § 11; 2013, ch. 319, § 2; repealed by 2021, ch. 307, § 14, effective July 1, 2021.

43-06-13. Term of license — Renewal — Fee — Requirements.

  1. A license to practice chiropractic in this state is valid for one year and must be renewed on or before the first day of September of each year.
  2. A renewal applicant shall pay a fee for renewal of a license. The fee for renewal of a license must be determined by the board from time to time, but may not exceed five hundred dollars.
  3. The board shall establish by rule the number of hours necessary for annual continuing education.
  4. The board shall establish by rule the accepted programs for the annual continuing education requirement.
  5. A license that has not been renewed, as a result of nonpayment of annual registration fees required by this chapter or as a result of the failure by the licensee to attend the required annual continuing education, may be reinstated by procedure adopted by the board in administrative rules. In either case, the board may charge an additional administrative fee to be fixed by the board at the time of consideration of the reinstatement, not to exceed four hundred dollars.
  6. In addition to the payment of fees, the board, after an investigation, may require a chiropractor whose license has not been renewed to submit to a re-examination as to the applicant’s qualifications to practice chiropractic before the applicant is reinstated, if the board in the exercise of the board’s discretion finds and determines the best interests of the public and the applicant will be served thereby.

Source:

S.L. 1919, ch. 78, § 3; 1925 Supp., § 523b3; S.L. 1941, ch. 183, § 1; R.C. 1943, § 43-0613; S.L. 1965, ch. 298, § 4; 1983, ch. 472, § 8; 1989, ch. 506, § 12; 2013, ch. 319, § 3; 2015, ch. 289, § 8, effective August 1, 2015; 2021, ch. 307, § 10, effective July 1, 2021.

43-06-14. License — How recorded. [Repealed]

Repealed by S.L. 1989, ch. 506, § 17.

43-06-14.1. Peer review of services and fees.

  1. The board, upon receipt of a complaint, may appoint a peer review committee for the purpose of investigation of the matter and rendering an opinion thereon.
  2. The peer review committee must be appointed by the board and function as its agent and may consist of different individuals for review of different cases.
  3. The peer review committee shall investigate each inquiry submitted by the board. It shall examine such witnesses, review such patient and business records, and otherwise take whatever action is necessary to best ascertain the facts. It shall transmit all information it possesses to the board and shall report its findings to the board. The board shall furnish copies of the findings to the party making the complaint and to the chiropractor.
  4. The determinations of the peer review committee must be presumed valid and may be considered as prima facie evidence in any further proceedings by the board.
  5. The provision of treatment rendered to a patient by a chiropractor constitutes the consent of the chiropractor to the submission of all necessary records and other information concerning the treatment to the board or peer review committee.
  6. The board may adopt rules it considers necessary and appropriate to implement the peer review system and activities established under this chapter.
  7. All data and information, including patient records acquired by the board or the peer review committee, in the exercise of its duties and functions, are confidential and closed to the public. All board and peer review committee meetings wherein patient testimony or records are taken or reviewed are confidential and closed to the public.
  8. Except a patient, any party, including any governmental agency, making a request under this section may be charged a fee by the board equal to the administration costs of performing the review.

Source:

S.L. 1989, ch. 506, § 14; 2015, ch. 289, § 9, effective August 1, 2015.

43-06-15. Grounds for denial of licensure, revocation, or suspension of license or other action of the board — Signed written statement — Investigation — Hearing.

  1. The board may deny an application for licensure and may revoke, suspend, or take such other action as provided in this section regarding the license of any chiropractor in this state who:
    1. Has a mental or physical condition such that the person is unable to safely engage in the practice of chiropractic.
    2. Has been declared incompetent or seriously mentally ill by a court of competent jurisdiction and thereafter has not been declared competent or released from supervision.
    3. Is suffering from alcoholism or drug addiction which endangers the public by impairing the chiropractor’s ability to practice safely.
    4. Procured the license to practice by fraud or mistake.
    5. Has engaged in unprofessional or dishonorable conduct, including false or misleading advertising, rendering excessive or inappropriate treatment, or charging unconscionable fees.
    6. Has been convicted of a crime involving sexual misconduct, infliction of physical harm or bodily injury to another individual, corruption, dishonesty, illegal possession or distribution of drugs, or any crime that would affect the person’s ability to practice as a licensed chiropractor. A copy of the record of conviction or plea of guilty or nolo contendere is conclusive evidence.
    7. Has aided, assisted, or enabled any unlicensed person to practice chiropractic contrary to this chapter or rule of the board.
    8. Has engaged in the practice of abortion.
    9. Has made use of any advertising statement of a character tending to deceive or mislead the public.
    10. Has failed to maintain a chiropractic facility in safe and sanitary conditions.
    11. Has incurred a disciplinary action, suspension, or revocation in another jurisdiction; has surrendered a license while a disciplinary complaint was pending in another jurisdiction; or has entered a settlement agreement to avoid or resolve a disciplinary complaint in another jurisdiction as a result of acts similar to acts described in this section or rule of the board. A certified copy of the board order in the other jurisdiction is conclusive evidence.
    12. Has committed any violation of the provisions of this chapter, the code of ethics, or rules as adopted by the board, including the failure to submit for physical or mental examination or to provide information as required by the board.
    13. Has practiced chiropractic while the license to practice was suspended or revoked.
    14. Has, while under probation, violated the terms of probation.
    15. Has failed to properly supervise a certified chiropractic clinical assistant or who has delegated duties to a certified chiropractic clinical assistant which are beyond the assistant’s education or training or which are beyond the scope of practice of a certified chiropractic clinical assistant.
  2. Any person, health care facility, business, or organization is immune from civil liability or criminal prosecution for submitting a signed written statement and other reports and information to the board under subsection 5 or for otherwise reporting to the board violations or alleged violations under this chapter. The reports are not public records.
  3. Members of the board and persons employed by the board or engaged in the investigation or prosecution of violations and in the preparation and management of charges of violations of this chapter on behalf of the board, including members of any peer review committee, are immune from civil liability and criminal prosecution for any actions, transactions, or publications in the execution of, or relating to, their duties under this chapter.
  4. A doctor of chiropractic who is the subject of an investigation by, or on behalf of, the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any question raised by, or on behalf of, the board relating to the subject of the investigation and providing copies of patient records or any pertinent information requested by the board, to assist the board in the board’s investigation.
  5. Any person, including a member of the board, may file a signed written statement and other reports and information with any member of the board against a licensed chiropractor charging the chiropractor with any of the offenses or conditions set forth in subsection 1. The statement must set forth a specification of the charges. When the statement has been filed, the board shall make an investigation as provided by subsection 6.
  6. When the statement and other reports and information have been filed, the board shall notify the licensed chiropractor of the allegations and thereafter shall investigate to determine whether the allegations in the statement constitute a basis for further proceedings. The investigation must be conducted in such manner and at such time and place as in the judgment of the board will best ascertain the facts. The board may appoint a peer review committee. The board, in order to pursue the investigation, may subpoena and examine witnesses and records, including patient records, and copy, photograph, or take samples. The board may require the licensed chiropractor to give statements under oath, to submit to a physical or mental examination, or both, by a physician or physicians and other qualified evaluation professionals selected by the board if it appears to be in the best interests of the public that this evaluation be secured. The board may examine and review any relevant medical or psychological records, including test results and x-rays relative to the examination or treatment of the licensed chiropractor. A written request from the board constitutes authorization to release information. The medical or psychological information is not public record.
  7. If, based on the investigation or report from a peer review committee, the board has reasonable cause to believe there is a basis for further proceedings, the board shall prepare a complaint and serve the complaint, along with a notice of hearing, on the licensed chiropractor and thereafter proceed with a hearing on the matter under chapter 28-32. All hearings must be held in Bismarck unless the board and the licensed chiropractor agree otherwise.
  8. After the hearing, the board, under section 28-32-39, shall make and give notice of the board’s determination or decision as to whether the offenses charged have been committed or the conditions charged do not exist. If the finding is in the negative, the board shall dismiss the charges. If the finding is in the affirmative, the board:
    1. Shall revoke the license;
    2. Shall suspend the licensee’s right to practice for a period not to exceed one year;
    3. Shall suspend the board’s judgment of revocation on terms and conditions determined by the board;
    4. Shall place the licensee on probation; or
    5. Shall take any other disciplinary action which the board in the board’s discretion considers proper, including the ordering of an adjustment to a patient’s bill or refund of an amount previously paid, including reasonable interest from the date of the order, to a patient or payer of any unconscionable fees for chiropractic services.
    6. In addition to the actions imposed in subdivisions a through e, may:
      1. Require payment of all costs of proceedings resulting in a disciplinary action, including administrative costs, investigation costs, attorney’s fees, peer review committee costs, witness costs and fees, the costs of the offices of administrative hearings services, and court costs.
      2. Impose a civil penalty not exceeding ten thousand dollars for each separate violation, to deprive the chiropractor of any economic advantage gained by reason of the violation found and to reimburse the board for the cost of the investigation and proceedings.
  9. In cases of revocation, suspension, or probation, the board shall record the facts of the case and all actions of the board.
  10. On the expiration of a term of suspension, the licensee must be reinstated by the board if the chiropractor applies to the board and furnishes evidence, satisfactory to the board, that the licensee is then of good character and conduct or restored to good health and the licensee has not practiced chiropractic during the term of suspension and is competent to practice in this state. If the evidence fails to establish those facts to the satisfaction of the board, the board may require the applicant to submit to an examination in accordance with this chapter or shall proceed to hearing on revocation with notice as provided in subsection 7.
  11. Any licensed chiropractor may take corrective action or voluntarily relinquish the chiropractor’s license to the board before a formal order of the board on such terms and conditions as may be agreed by the licensed chiropractor and the board.

Source:

R.C. 1943, § 43-0615; S.L. 1989, ch. 506, § 13; 2001, ch. 293, § 19; 2015, ch. 289, §§ 10, 11, effective August 1, 2015; 2017, ch. 286, § 7, effective August 1, 2017; 2021, ch. 307, § 11, effective July 1, 2021.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-06-16. Duties of chiropractor.

Every licensed chiropractor practicing in this state shall:

  1. Observe all state and municipal regulations relating to the control of contagious and infectious diseases.
  2. Sign death and birth certificates.
  3. Sign certificates pertaining to public health.
  4. Report to the proper health officer in the manner required of licensed physicians.

All certificates signed by a chiropractor licensed to practice in this state are of the same force and effect as those signed by other licensed physicians.

Source:

S.L. 1919, ch. 78, § 1; 1925 Supp., § 523b1; R.C. 1943, § 43-0616; S.L. 1989, ch. 506, § 15.

43-06-16.1. Certified chiropractic clinical assistant.

  1. A person may not practice as a certified chiropractic clinical assistant or claim to be a chiropractic assistant without certification from the board. The fee for initial certification may not exceed one hundred dollars per year and must be set by the board from time to time. The board may grant a temporary certification to an initial applicant who is waiting for a criminal history background check to be completed. This temporary certification expires automatically upon the applicant receiving a regular certification or being notified the application has been denied.
  2. To be certified to practice as a certified chiropractic clinical assistant, an applicant shall provide evidence satisfactory to the board the applicant:
    1. Graduated from high school, or holds a graduate equivalency degree.
    2. Is at least eighteen years of age.
    3. Successfully completed the certified chiropractic clinical assistant program and examination by the federation of chiropractic licensing boards.
    4. Successfully completed a criminal history record check as authorized by section 43-06-11.1.
    5. Completed an application in a manner and form provided by the board.
    6. Paid all applicable fees relative to the application process as determined by the board.
    7. Received practical experience to the extent required to demonstrate competency to safely provide patient care pertinent to the chiropractic office at which the certified chiropractic clinical assistant is employed.
  3. A certified chiropractic clinical assistant who is certified in another jurisdiction may apply for certification. The applicant shall provide evidence satisfactory to the board the applicant:
    1. Has current practice privilege in good standing as a certified chiropractic clinical assistant or equivalent granted by at least one jurisdiction with requirements similar to or greater than the requirements of this board; and
    2. Presented to the board current documentation that any practice privilege granted by another jurisdiction as a certified chiropractic clinical assistant or equivalent has not been suspended, revoked, or otherwise restricted for any reason except nonrenewal.
  4. A minimum passing examination result is required to obtain certification. The board may accept a chiropractic clinical assistant program examination such as the federation of chiropractic licensing board-certified chiropractic clinical assistant program examination or its board-approved successor or equivalent.
  5. The fee for renewal of the certification may not exceed one hundred dollars per year and must be set by the board from time to time. A certificate in this state is valid for one year and must be renewed on or before March first of every year.
    1. A certified chiropractic clinical assistant shall obtain three hours of continuing education every year after the initial certification to renew certification. These hours must be a program or seminar approved by providers of approved continuing education, a seminar approved for continuing education by another state’s board of chiropractic examiners or equivalent, or a seminar otherwise approved by the board. Proof of meeting continuing education requirements must be submitted with the certified chiropractic clinical assistant’s renewal application.
    2. For an applicant who first receives initial certification between December first of the year immediately before renewal and March first, the certification is deemed to be automatically renewed on March first for an additional year without payment of an additional renewal fee.
  6. A certified chiropractic clinical assistant must be under the direct supervision of a North Dakota licensed chiropractor in good standing with the board. Direct supervision means the oversight provided by the chiropractor over the clinical services performed by a certified chiropractic clinical assistant, and requires the chiropractor to be on the premises at all times and readily available to instruct the certified chiropractic clinical assistant throughout the performance of the clinical services.
  7. The certified chiropractic clinical assistant may assist the chiropractor in patient care involving physiotherapy, electrotherapy, hydrotherapy, chiropractic rehabilitative therapy, administrative processes, and other activities as needed to assist in the practice of chiropractic. The certified chiropractic clinical assistant may perform delegated duties commensurate with the certified chiropractic clinical assistant’s education and training, but may not evaluate, interpret, design, or modify established treatment programs of chiropractic care or violate any statute. Certified chiropractic clinical assistants may not participate in clinical decision making, render manipulative chiropractic care, create or change the course of a chiropractic treatment plan, or represent themselves as independent health care providers. A certified chiropractic clinical assistant may not perform medical imaging unless also licensed under chapter 43-62.
  8. The board may deny certification of an applicant, or may revoke, suspend, or take other appropriate disciplinary or corrective action regarding the certification of any certified chiropractic clinical assistant who:
    1. Has a mental or physical condition that renders the individual unable to safely engage in patient care.
    2. Has been declared incompetent by a court.
    3. Is suffering from alcoholism or drug addiction that endangers the public by impairing the certified chiropractic clinical assistant’s ability to practice safely.
    4. Procured the certification to practice by fraud or mistake.
    5. Has engaged in unprofessional or dishonorable conduct.
    6. Has been convicted of a crime involving sexual misconduct, infliction or physical harm or bodily injury to another individual, corruption, or dishonesty which would affect the certified chiropractic clinical assistant’s ability to safely engage in patient care.
    7. Has aided or assisted a noncertified individual to practice as a certified chiropractic clinical assistant.
    8. Has made advertising statements that are deceiving or misleading to the public.
    9. Has had disciplinary action taken in another jurisdiction.
    10. Has committed any violation of regulations regarding chiropractic found in this chapter or rules adopted by the board.
    11. Has practiced as a certified chiropractic clinical assistant while the certification was suspended or revoked.
    12. Is found to have committed unprofessional conduct, which includes:
      1. Willfully harassing, abusing, or intimidating a patient either physically or verbally.
      2. Any conduct that has endangered or is likely to endanger the health or safety of the public.
      3. Conviction of a crime related to the qualification of a certified chiropractic clinical assistant.
      4. Conviction of a felony or any offense involving sexual misconduct, infliction of physical harm or bodily injury to another individual, dishonesty, or corruption.
      5. Conviction of violating any law or regulation concerning the dispensing or administration of narcotics, dangerous drugs, or controlled substances.
      6. Knowingly making or signing any false certificates related to the chiropractic care administered.
      7. Participation in any act of fraud.
      8. Except as required by law, the unauthorized disclosure of any information about a patient revealed or discovered during the course of examination or treatment.
      9. Delegating professional responsibilities to a person that is not certified to provide the services.
      10. Initiating or engaging in any sexual conduct, sexual activities, or sexualizing behavior involving a current patient even if the patient attempts to sexualize the relationship, except when the patient is the certified chiropractic clinical assistant’s spouse or significant other.
  9. Disciplinary procedures will be conducted in accordance with chapter 28-32, with the following provisions:
    1. Complaints must be filed and signed in written form or may be considered by the board on the board’s own motion.
    2. The board shall notify the certified chiropractic clinical assistant and the employer regarding any complaints filed. Full and timely cooperation is required in the investigation.
    3. The board may appoint a peer review committee at the board’s discretion. The peer review committee has the same authority as a peer review committee appointed under section 43-06-14.1.
    4. If the board finds probable cause to impose disciplinary action, the board shall prepare a complaint and serve the complaint to the certified chiropractic clinical assistant and employer.
  10. Certification is not required for individuals who solely perform administrative activities of a nonclinical nature.

History. S.L. 2017, ch. 286, § 8, effective August 1, 2017; 2021, ch. 307, § 12, effective July 1, 2021.

43-06-17. Right of chiropractor to practice in public and private hospitals and institutions.

A licensed chiropractor may practice under the same standards as other health practitioners in any public or private hospital or other institution in this state, when requested so to do by any patient or the guardian of any patient.

Source:

S.L. 1919, ch. 78, § 2; 1925 Supp., § 523b2; R.C. 1943, § 43-0617; 2013, ch. 320, § 1.

43-06-17.1. Temporary suspension — Appeal.

  1. If based on verified evidence the board determines by a clear and convincing standard that the evidence presented to the board indicates that the continued practice by the chiropractor would create significant risk of serious and ongoing harm to the public while a disciplinary proceeding is pending, and that immediate suspension of the chiropractor’s license is required to reasonably protect the public from the risk of harm, the board may order a temporary suspension ex parte. For purposes of this section, “verified evidence” means testimony taken under oath and based on personal knowledge. The board shall give prompt written notice of the suspension of the chiropractor, which must include a copy of the order and complaint, the date set for a full hearing, and, upon request, a specific description of the nature of the evidence, including a list of all known witnesses and a specific description of any documents relied upon by the board in ordering the temporary suspension must be made available to the chiropractor.
  2. An ex parte suspension remains in effect until a final order is issued after a full hearing or appeal under this section or until the suspension is otherwise terminated by the board.
  3. The board shall conduct a hearing on the merits of the allegations to determine what disciplinary action, if any, will be taken against the chiropractor who is the subject of the ex parte suspension. That hearing must be held not later than thirty days from the issuance of the ex parte temporary suspension order. The chiropractor is entitled to a continuance of the thirty-day period upon request for a period determined by the hearing officer.
  4. The chiropractor may appeal the ex parte temporary suspension order before the full hearing. For purposes of appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The court shall give priority to the appeal for prompt disposition.
  5. Any medical record of a patient, or other document containing personal information about a patient, which is obtained by the board is an exempt record as defined in section 44-04-17.1.

History. S.L. 2015, ch. 289, § 12, effective August 1, 2015.

43-06-18. State’s attorney to enforce law.

The state’s attorney of each county in this state shall enforce section 43-06-19 and prosecute all violations of this section, and the executive director of the board, under the direction of the board, shall aid in the enforcement of this chapter.

Source:

S.L. 1915, ch. 228, § 8; 1919, ch. 78, § 5; 1925 Supp., §§ 523a8, 523b5; R.C. 1943, § 43-0618; 2009, ch. 359, § 1; 2021, ch. 307, § 13, effective July 1, 2021.

43-06-19. Penalty.

  1. It is a class B misdemeanor for any person who fraudulently procures a license to practice chiropractic or who, without complying with the provisions of this chapter:
    1. Practices or attempts to practice chiropractic;
    2. Advertises as a chiropractor; or
    3. Uses the terms or letters, doctor of chiropractic, chiropractor, D.C., chiropractic physician, or any other title that will induce the belief that the person is engaged in the practice of chiropractic.
  2. It is an infraction for any person that fraudulently procures a certification to practice as a certified chiropractic clinical assistant or that, without complying with the provisions of this chapter:
    1. Practices or attempts to practice as a certified chiropractic clinical assistant;
    2. Advertises as a certified chiropractic clinical assistant; or
    3. Uses the terms or letters certified chiropractic clinical assistant, certified chiropractic clinical assistant, or any other title that will induce the belief the person is engaged in the practice of chiropractic as a certified chiropractic assistant.

Source:

S.L. 1915, ch. 228, § 8; 1919, ch. 78, § 5; 1925 Supp., §§ 523a8, 523b5; R.C. 1943, § 43-0619; S.L. 1975, ch. 106, § 472; 1989, ch. 506, § 16; 2009, ch. 359, § 2; 2017, ch. 286, § 9, effective August 1, 2017.

Cross-References

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-07 Contractors

43-07-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Contractor” means any person engaged in the business of construction, repair, alteration, dismantling, or demolition of bridges, highways, roads, streets, buildings, airports, dams, drainage or irrigation ditches, sewers, water or gas mains, water filters, tanks, towers, oil, gas, or water pipelines, and every other type of structure, project, development, or improvement coming within the definition of real or personal property, including the construction, alteration, or repair of property to be held either for sale or rental, and includes subcontractor, public contractor, and nonresident contractor.
  2. “Contractor year” means March second through March first.
  3. “Nonresident contractor” means any contractor who does not have an established and maintained place of business within this state, or who has not made reports to North Dakota workforce safety and insurance within the previous year of employees within this state, and who has not made contributions to the North Dakota workforce safety and insurance fund accordingly, or who, during a like period has not made an income tax return in this state.
  4. “Public contract” means a contract with the state of North Dakota or any board, commission, or department thereof, or with any board of county commissioners, or with any city council or board of city commissioners, board of township supervisors, school board, or with any state or municipal agency, or with any other public board, body, commission, or agency authorized to let or award contracts for the construction or reconstruction of public work when the contract cost, value, or price exceeds the sum of four thousand dollars and includes subcontracts undertaken to perform work covered by the original contract or any part thereof when the contract cost, value, or price of the work included in the subcontract exceeds the sum of four thousand dollars.
  5. “Registrar” means the secretary of state.

Source:

S.L. 1937, ch. 110, § 1; R.C. 1943, § 43-0701; S.L. 1963, ch. 304, § 1; 1993, ch. 54, § 106; 1995, ch. 397, § 1; 2003, ch. 561, § 3; 2017, ch. 306, § 1, effective August 1, 2017; 2019, ch. 343, § 1, effective August 1, 2019.

Cross-References.

Construction lien by contractor, see N.D.C.C. ch. 35-27.

Preference to North Dakota bidders and sellers, see N.D.C.C. §§ 44-08-01, 44-08-02.

Provision relating to workers’ compensation required in public contractor’s bond, see N.D.C.C. § 65-04-10.

Notes to Decisions

Contractors.

Considering that former subsection (3) (now subsection (1)) provides a clear and thorough definition of the term “contractor” consistent with the references to contractor activities contained in N.D.C.C. § 57-40.2-14, which is part of the use tax section of the code and discusses contractors involved in “the erection of buildings or the alteration, improvement or repair of real property,” the definition of “contractor” was held to apply to the term “contractor” used in N.D.C.C. § 57-40.2-03.3. Northern X-Ray Co. v. State by & Through Hanson, 542 N.W.2d 733, 1996 N.D. LEXIS 25 (N.D. 1996).

Taxpayer was not a contractor under the definition provided in former subsection (3) (now subsection (1)) of this section, where it assembled certain items of medical equipment in clinics, which were all put in place within a matter of days and could be equally easily removed, it was not registered as a contractor, and was not in the business of altering, repairing or improving real property; therefore, taxpayer was not liable for payment of contractor use tax under N.D.C.C. § 57-40.2-03.3. Northern X-Ray Co. v. State by & Through Hanson, 542 N.W.2d 733, 1996 N.D. LEXIS 25 (N.D. 1996).

Collateral References.

Who is a “contractor” within statutes requiring the licensing of, or imposing a license tax upon, a “contractor” without specifying the kinds of contractors involved, 19 A.L.R.3d 1407.

Subcontractors, duty and liability of subcontractor to employee of another contractor using equipment or apparatus of former, 55 A.L.R.4th 725.

Partnership or joint venture exclusion in contractor’s or other similar comprehensive general liability insurance policy, 57 A.L.R.4th 1155.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right of recovery for work done — modern cases, 44 A.L.R.4th 271.

43-07-02. License required — Construction fraud — Penalty.

  1. A person may not engage in the business nor act in the capacity of a contractor within this state when the cost, value, or price per job exceeds the sum of four thousand dollars nor may that person maintain any claim, action, suit, or proceeding in any court of this state related to the person’s business or capacity as a contractor without first having a license as provided in this chapter.
  2. Any person acting in the capacity of a contractor without a license is guilty of a class A misdemeanor. Regardless of whether a person is subjected to criminal prosecution under this subsection, and in addition to the license fee that may be assessed when the person applies for a license, the person may be assessed a civil penalty by the registrar, following written notice to the person of an intent to assess the penalty, in an amount not to exceed three times the amount set forth in section 43-07-07. Any civil penalty must be assessed and collected before a person is issued a license. The assessment of a civil penalty may be appealed in the same manner as appeals under section 43-07-04.
  3. A person commits construction fraud if:
    1. The person receives payment for a construction project by intentionally using deception as defined in section 12.1-23-10.
    2. The person receives payment for the purchase of materials or supplies and willfully fails to pay the supplier for the goods received.
    3. The person willfully abandons a construction project after receiving payment for services or materials. Abandonment under this subdivision arises if:
      1. A contractor fails substantially to commence any work agreed upon:
        1. Within sixty days of a starting date agreed upon in writing; or
        2. Within ninety days of the contract date if no starting date is agreed upon in writing; or
      2. A contractor fails to complete any work agreed upon in writing within ninety days of a completion date agreed upon in writing, or within one hundred eighty days of the contract date if no completion date is agreed upon in writing.
  4. It is a defense to prosecution under subsection 3 if:
    1. The person returned all of the payment received for work not performed or materials not supplied. If the person provided materials to the jobsite but did not pay suppliers for those materials, this defense does not apply. This defense is only valid if the payment was provided before criminal charges were filed.
    2. The person had a legitimate legal excuse for nonperformance.
    3. The person was not able to begin or complete the project because there were factors outside of the person’s control and the person made substantial efforts to resolve any dispute.
  5. The grade of the offense for violating subsection 3 is based on the amount of payment received. Payment of under ten thousand dollars is a class C felony; more than ten thousand dollars but not more than fifty thousand dollars is a class B felony; and more than fifty thousand dollars is a class A felony.

Source:

S.L. 1937, ch. 110, § 2; R.C. 1943, § 43-0702; S.L. 1963, ch. 304, § 2; 1969, ch. 391, § 1; 1995, ch. 397, § 2; 1997, ch. 365, § 1; 2005, ch. 357, § 1; 2007, ch. 359, § 1; 2015, ch. 290, § 1, effective April 15, 2015.

Cross-References.

Bids on public contract to show that bidder is licensed, see N.D.C.C. § 43-07-12.

Collateral References.

Who is a “contractor” within statutes requiring the licensing of, or imposing a license tax upon, a “contractor” without specifying the kinds of contractors involved, 19 A.L.R.3d 1407.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right of recovery for work done — modern cases, 44 A.L.R.4th 271.

Notes to Decisions

Award Prior to Licensure Not Allowed.

Because the district court's award to the contractor included a time period when the contractor was not licensed, a remand was necessary to determine whether any portion of the unpaid services and materials were provided while the contractor was not licensed. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

Construction.

Supreme Court of North Dakota interprets N.D.C.C. § 43-07-02 to allow a contractor to pursue an action or claim only for work performed while licensed. This interpretation is consistent with the text and furthers the purpose of the licensing statutes. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

Unlike statutes in other states, N.D.C.C. § 43-07-02 did not expressly condition court action on licensure both at the time of entering into a contract and at all times while performing work under a contract. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

43-07-03. Registrar authority.

The registrar may employ assistance and procure records, supplies, and equipment as necessary to carry out this chapter.

Source:

S.L. 1937, ch. 110, § 3; R.C. 1943, § 43-0703; 2019, ch. 343, § 2, effective August 1, 2019.

43-07-04. License — How obtained — Failure to grant — Revocation for not in good standing.

  1. To obtain a license under this chapter, an applicant who is eighteen years of age or older shall submit, on forms the registrar prescribes, an application under oath containing a statement of the applicant’s experience and qualifications as a contractor. A copy of a certificate of liability insurance must be filed with the application and the contractor shall submit a statement from North Dakota workforce safety and insurance that the contractor has secured workforce safety and insurance coverage satisfactory to workforce safety and insurance. If the registrar deems it appropriate or necessary, the registrar may also require any other information to assist the registrar in determining the applicant’s eligibility to act in the capacity of a contractor, including, at the expense of the applicant, criminal history record information of the applicant or the officers, members, or partners of the applicant which is held or maintained by the bureau of criminal investigation or a similar entity in another state. The application must contain a statement that the applicant desires the issuance of a license under this chapter and must specify the class of license sought.
  2. The registrar may refuse to grant a license if the registrar determines the application contains incomplete information, or the applicant fails or refuses to authorize or pay for criminal history information requested by the registrar. The registrar shall notify the applicant in writing if the registrar does not grant the license and shall provide the applicant an opportunity to respond to or cure the defect in the application for a period of ten days from the date of the written notification. An applicant aggrieved by a decision of the registrar not to grant the license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  3. No sooner than twenty days after sending written notice to a contractor at the contractor’s last-known address, the registrar shall classify as not in good standing the license of any contractor who fails to:
    1. Maintain liability insurance coverage required by this section or by section 43-07-10;
    2. File, renew, or properly amend any fictitious name certificate required by chapter 45-11;
    3. Maintain an active status of a corporation or registration as a foreign corporation;
    4. Maintain an active status of a limited liability company or registration as a foreign limited liability company;
    5. File or renew a trade name registration as required by chapter 47-25;
    6. Maintain a limited liability partnership registration or foreign limited liability partnership registration as required by chapter 45-22; or
    7. Maintain a limited partnership certificate of limited partnership or foreign limited partnership certificate of authority.
  4. Any contractor who has been notified by the registrar that the contractor’s license is not in good standing shall cease soliciting or entering new contract projects. If the contractor fails to correct the deficiency specified in the notice by evidence satisfactory to the registrar within thirty days of the date of the notice or if the contractor solicits or enters new contract projects while the contractor’s license is not in good standing, the registrar shall use the procedures of chapter 28-32 to revoke the license of the contractor.

Source:

S.L. 1937, ch. 110, § 4; R.C. 1943, § 43-0704; S.L. 1963, ch. 304, § 3; 1969, ch. 391, § 2; 1979, ch. 598, § 2; 1983, ch. 473, § 1; 1989, ch. 69, § 50; 1993, ch. 418, § 1; 1995, ch. 397, § 3; 1997, ch. 365, § 2; 1999, ch. 373, § 1; 2001, ch. 366, § 1; 2003, ch. 357, § 1; 2003, ch. 561, § 3; 2005, ch. 357, § 2; 2007, ch. 359, § 2; 2015, ch. 291, § 1, effective July 1, 2015.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Provision relating to workers’ compensation required in public contractor’s bond, see N.D.C.C. § 65-04-10.

43-07-04.1. Denial, suspension, or revocation of license — Eligibility.

  1. The registrar may deny any application for license, deny any application for renewal of license, or suspend or revoke any license, based on the applicant’s or licensee’s lack of eligibility to act in the capacity of a contractor, upon proof of one or more of the following:
    1. The application for a license contains false or misleading information;
    2. The applicant or licensee has been convicted of an offense that has direct bearing upon the applicant’s or licensee’s ability to serve the public as a contractor; or
    3. The licensee or applicant has engaged in conduct as a contractor which is dishonest or fraudulent and which the registrar finds injurious to the welfare of the public.
  2. Notwithstanding subdivision b of subsection 1, conviction of an offense does not make a person ineligible for licensure under this chapter unless, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. Any applicant denied a license or denied renewal of a license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  4. Section 43-07-15 applies to any decision by the registrar to revoke or suspend a license.

Source:

S.L. 1977, ch. 130, § 23; 2015, ch. 291, § 2, effective April 16, 2015.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-07-05. Classes of licenses. [Repealed]

Source:

S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0705; S.L. 1963, ch. 304, § 4; 1981, ch. 438, § 1; repealed by 2015, ch. 291, § 7, effective July 1, 2015.

43-07-06. Administrative and governing bodies may impose requirements.

Any administrative body or governing body, agency, or commission having power to enter into public contracts may impose reasonable requirements and conditions as conditions precedent to the awarding of a contract for the construction or reconstruction of public works in addition to the requirements imposed by this chapter.

Source:

S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0706.

Cross-References.

Chapter inapplicable to authorized representatives of governmental entities, see N.D.C.C. § 43-07-08.

Collateral References.

Wages: validity of statute, ordinance or charter provision requiring that workmen on public works be paid the prevailing or current rate of wages, 18 A.L.R.3d 944.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Equal opportunities clause: construction and operation of “equal opportunities clause” requiring pledge against racial discrimination in hiring under construction contract, 44 A.L.R.3d 1283.

Waiver of competitive bidding requirements for state and local public building and construction contracts, 40 A.L.R.4th 968.

Validity, construction, and effect of state and local laws requiring governmental units to give “purchase preference” to goods manufactured or services performed in state, 84 A.L.R.4th 419.

What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337.

Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

43-07-07. Classes of licenses — License fees — License renewal fees.

  1. Four classes of licenses may be issued under this chapter, which must be designated as class A, B, C, and D licenses. A holder of a license may engage in the contracting business within this state subject to the following limitations:
    1. The holder of a class A license is subject to no limitation as to the value of any single contract project.
    2. The holder of a class B license is not entitled to engage in the construction of any single contract project of a value in excess of five hundred thousand dollars.
    3. The holder of a class C license is not entitled to engage in the construction of any single contract project of a value in excess of three hundred thousand dollars.
    4. The holder of a class D license is not entitled to engage in the construction of any single contract project of a value in excess of one hundred thousand dollars.
  2. If applying for a license as described and required in this chapter, the applicant shall pay to the registrar the following fees:
    1. For a class A license, the sum of four hundred fifty dollars.
    2. For a class B license, the sum of three hundred dollars.
    3. For a class C license, the sum of two hundred twenty-five dollars.
    4. For a class D license, the sum of one hundred dollars.
  3. For a renewal of a license, the licensee shall pay to the registrar the following fees:
    1. For a class A license, the sum of ninety dollars.
    2. For a class B license, the sum of sixty dollars.
    3. For a class C license, the sum of forty-five dollars.
    4. For a class D license, the sum of thirty dollars.
  4. Twenty-five percent of all moneys collected by the registrar under this chapter must be deposited in the secretary of state’s general services operating fund to pay the cost to administer this chapter and the balance of the moneys collected must be deposited with the state treasurer, who shall credit that amount to the general fund of the state.

Source:

S.L. 1937, ch. 110, §§ 5, 9; R.C. 1943, § 43-0707; S.L. 1969, ch. 391, § 3; 1981, ch. 438, § 2; 1993, ch. 75, § 14; 2015, ch. 291, § 3, effective July 1, 2015; 2019, ch. 343, § 3, effective August 1, 2019.

43-07-08. Exceptions.

This chapter does not apply to:

  1. Any authorized representative or representatives of the United States government, the state of North Dakota, or any county, municipality, irrigation district, reclamation district, or other political corporation.
  2. Any person who furnishes any fabricated or finished product, material, or article of merchandise which is not incorporated into or attached to real property by such person so as to become affixed thereto.

Source:

S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0708; S.L. 1963, ch. 304, § 5; 1995, ch. 397, § 4.

Cross-References.

Administrative or governing bodies may impose conditions in addition to those required by this chapter, see N.D.C.C. § 43-07-06.

43-07-09. Duty of registrar — Expiration of license.

Within fifteen days from the date of application, the registrar may investigate and determine each applicant’s eligibility to act in the capacity of a contractor as provided in section 43-07-04.1, and no license may be issued to such applicant until the registrar receives all documentation necessary to obtain a license and the appropriate fee. The license issued on an original application entitles the licensee to act as a contractor within this state, subject to the limitations of such license, until the expiration of the then current contractor year ending March first, except that an initial license issued to a licensee in January or February is valid until March first of the subsequent year.

Source:

S.L. 1937, ch. 110, § 6; 1943, ch. 163, § 1; R.C. 1943, § 43-0709; S.L. 1963, ch. 304, § 6; 1981, ch. 438, § 3; 1993, ch. 419, § 2; 1995, ch. 397, § 5; 1997, ch. 365, § 3; 1999, ch. 373, § 2; 2015, ch. 291, § 4, effective July 1, 2015; 2019, ch. 343, § 4, effective August 1, 2019.

43-07-09.1. Name changes.

Not later than ten days after the date of a change in a contractor’s name, the licensee shall notify the registrar of the name change on a form provided by the registrar. A name change must be accompanied by a ten dollar fee. A licensee may not change the name of the licensee if the change is associated with a change in the legal status other than a change in marital status. A corporation, limited liability company, limited liability partnership, or limited partnership registered with the registrar is not subject to this section.

Source:

S.L. 1993, ch. 419, § 1; 1997, ch. 365, § 4; 2019, ch. 343, § 5, effective August 1, 2019.

43-07-10. Renewal of license — Grounds for nonrenewal — Time requirements — Invalidity of license for failure to renew.

  1. Any license issued under this chapter may be renewed for each successive contractor year by obtaining from the registrar a certificate for the current contractor year. To obtain a certificate for the current contractor year, the licensee shall file with the registrar an application that includes a listing of each project, contract, or subcontract completed by the licensee during the preceding calendar year in this state over the amount of twenty-five thousand dollars and the nature of the work of each project, contract, or subcontract. The registrar, within a reasonable time, shall forward a copy of the list to the state tax commissioner. The applicant shall include with the application a copy of a certificate of liability insurance naming the registrar as the certificate holder unless the registrar has a current valid certificate of insurance on file, and a certification that the applicant has submitted all payroll taxes, including North Dakota income tax, workforce safety and insurance premiums, and unemployment insurance premiums due at the time of renewal, which documents need not be notarized.
  2. The registrar may refuse to renew a license if the registrar determines the application contains false, misleading, or incomplete information or if the contractor’s license is not in good standing for any of the reasons listed in subsection 3 of section 43-07-04. The registrar shall notify the applicant in writing if the registrar does not grant the license and shall provide the applicant an opportunity to respond to or cure the defect in the application for a period of ten days from the date of the written notification. An applicant aggrieved by a decision of the registrar not to grant the license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  3. The application for a certificate for the current contractor year must be made to the registrar before March second of each year, except as provided otherwise under this chapter. At the time of filing the application for a certificate for the current contractor year, the applicant shall pay to the registrar the renewal fee established in section 43-07-07. If any contractor applies for a renewal under a class different from the license previously issued, the new class license may be issued upon the payment of the fee required for the issuance of the license of the class applied for. If any contractor fails to file an application for a certificate for the current contractor year by the March first deadline, the contractor’s license is not in good standing and the contractor is deemed to be unlicensed within the meaning of section 43-07-02. Within sixty days after March first, the registrar shall notify the contractor by mail that the contractor’s license is not in good standing. The contractor then has until June first to renew by paying a penalty fee of fifty dollars, filing an application for a certificate for the current contractor year, and paying the renewal fee. A contractor who applies for a certificate for the current contractor year before or within ninety days of the filing deadline is not subject to the investigation authorized in section 43-07-09. After the June first deadline any licenses not renewed are expired. Any application for a certificate for the current contractor year must be fully completed within sixty days of the date the application is received by the registrar or the registrar shall return the application to the contractor who then is subject to section 43-07-09. The registrar may destroy all renewals provided for in this section after the renewals have been on file for six years.

Source:

S.L. 1937, ch. 110, § 6; 1943, ch. 163, § 1; R.C. 1943, § 43-0710; S.L. 1963, ch. 304, § 7; 1969, ch. 391, § 4; 1979, ch. 460, § 1; 1981, ch. 438, § 4; 1983, ch. 473, § 2; 1991, ch. 452, § 1; 1993, ch. 54, § 106; 1993, ch. 418, § 2; 1995, ch. 397, § 6; 1997, ch. 365, § 5; 1999, ch. 373, § 3; 2001, ch. 367, § 1; 2003, ch. 561, § 3; 2005, ch. 357, § 3; 2007, ch. 359, § 3; 2009, ch. 462, § 2; 2015, ch. 290, § 2, effective April 15, 2015; 2015, ch. 291, § 5, effective April 15, 2015; 2019, ch. 343, § 6, effective August 1, 2019.

Notes to Decisions

Effective Date of Renewal.

A renewed license is not effective until the certificate of renewal is obtained and is not effective retroactive to January 1 after having been obtained. Haugen v. Berthold, 267 N.W.2d 198, 1978 N.D. LEXIS 254 (N.D. 1978).

43-07-11. Contractor’s bond — Requirements. [Repealed]

Repealed by S.L. 1995, ch. 397, § 9.

43-07-11.1. Contracts with state.

  1. A contractor, resident or nonresident, is not eligible to enter a public contract with any department of the state of North Dakota, or any political or governmental subdivision of the state until satisfactory showing is made that the contractor has paid all delinquent income, sales or use taxes, if any, owed to the state pursuant to the provisions of the income, sales or use tax laws, and which have been assessed either by the filing of an income or sales and use tax return by the contractor, or by an assessment of additional income, sales or use taxes against the contractor by the commissioner which has become finally and irrevocably fixed, before the date that the contract was executed by the parties to the contract.
  2. A certificate from and by the tax commissioner satisfies the requirement of subsection 1. Upon failure to file such a certificate, the department or political or governmental subdivision shall refuse to execute the public contract.
  3. The provisions of this section apply to contracts executed after July 1, 1965.

Source:

S.L. 1965, ch. 299, § 1; 1969, ch. 392, § 1; 2019, ch. 343, § 7, effective August 1, 2019.

43-07-12. Bids to show license issued.

All bids and proposals for the construction of any public contract project subject to this chapter must contain a copy of the license or certificate for the current contractor year of the license issued by the registrar, enclosed in the required bid bond envelope. A contract may not be awarded to any contractor unless the contractor is the holder of a license in the class within which the value of the project falls as provided under this section. A contractor must be the holder of a license at least ten days before the date set for receiving bids, to be a qualified bidder. A bid submitted without this information properly enclosed in the bid bond envelope may not be read or considered and must be returned to the bidder. This section does not apply to bids submitted:

  1. To the department of transportation;
  2. For use of municipal, rural, and industrial water supply funds authorized by Public Law No. 99-294 [100 Stat. 418];
  3. To the public service commission; or
  4. For use of federal aid highway funds authorized by Public Law No. 85-767 [72 Stat. 885; 23 U.S.C. 101 et seq.].

Source:

S.L. 1937, ch. 110, § 8; 1943, ch. 163, § 1; R.C. 1943, § 43-0712; S.L. 1961, ch. 289, § 1; 1965, ch. 300, § 1; 1983, ch. 474, § 1; 1989, ch. 508, § 1; 1995, ch. 398, § 1; 2019, ch. 343, § 8, effective August 1, 2019.

Cross-References.

Sealed bids for purchase of personal property and equipment, time and place for opening bids, see N.D.C.C. § 44-08-01.1.

Notes to Decisions

Obtaining License or Renewal After Bid.

Bidder is required to hold a current contractor’s license or renewal thereof issued at least ten days prior to the date set for receiving bids, and city has no authority to contract with bidder who obtains his license or renewal after the bids are received. Haugen v. Berthold, 267 N.W.2d 198, 1978 N.D. LEXIS 254 (N.D. 1978).

43-07-13. Records and certified copies of records.

The registrar shall maintain in the registrar’s office, open to public inspection during office hours, a complete indexed record of all applications, licenses, certificates for the current contractor year, revocations, expirations, and other information maintained on contractors. The registrar may dispose of an inactive contractor file after two years if no attempts have been made to apply for a new license or renew the license. Disposal of the license will proceed according to the provisions of chapter 54-46. Before disposal and upon request, the registrar shall furnish a certified copy of any information maintained upon receipt of the fees prescribed in section 54-09-04. Any certificate or certified copy issued by the registrar under this section has the same force and effect as provided in section 54-09-02.1.

Source:

S.L. 1937, ch. 110, § 10; R.C. 1943, § 43-0713; S.L. 1969, ch. 391, § 5; 1977, ch. 398, § 1; 1983, ch. 475, § 1; 1997, ch. 365, § 6; 2011, ch. 393, § 2; 2019, ch. 343, § 9, effective August 1, 2019.

43-07-14. Complaint for license revocation — Consumer fraud action.

  1. Any person may file a duly verified complaint with the registrar charging that the licensee is guilty of any of the following acts or omissions:
    1. Abandonment of any contract without legal excuse after a deposit of money or other consideration has been provided to the licensee. A rebuttable presumption of abandonment arises if:
      1. A contractor fails substantially to commence any work agreed upon, unless the failure is due to circumstances beyond the control of the contractor:
        1. Within sixty days of a starting date agreed upon in writing; or
        2. Within ninety days of the contract date if no starting date is agreed upon in writing; or
      2. A contractor fails to complete any work agreed upon in writing within ninety days of a completion date agreed upon in writing, or within one hundred eighty days of the contract date if no completion date is agreed upon in writing, unless the failure is due to circumstances beyond the control of the contractor.
    2. Diversion of funds or property received under express agreement for the prosecution or completion of a specific contract under this chapter, or for a specified purpose in the prosecution or completion of any contract, and their application or use for any other contract obligation or purpose to defraud or deceive creditors or the owner.
    3. Engaging in any fraudulent or deceptive acts or practices or misrepresentation as a contractor in consequence of which one or more persons is injured in a total amount exceeding three thousand dollars.
    4. The making of any false or misleading statement in any application for a license or renewal or by violating this chapter or being convicted of an offense the registrar determines has a direct bearing on the applicant’s or licensee’s ability to serve the public as a contractor as set out in section 12.1-33-02.1.
    5. Engaging in work without any trade or professional license as required for the work pursuant to local, state, or federal law.
    6. Failure to refund fully the contracting party’s advance payment if a rebuttable presumption of abandonment has arisen and the contracting party has made a request to the licensee for a refund.
  2. The complaint must be on a form approved by the registrar and must set forth sufficient facts upon which a reasonable individual could conclude that any of the acts or omissions in subsection 1 has been committed.
  3. Any act or omission under this section may also constitute grounds for the attorney general to bring an action under chapter 51-15 against the licensee or any unlicensed person engaging in the business or acting in the capacity of a contractor in violation of section 43-07-02 and subjects the licensee or any such unlicensed person to all provisions, procedures, remedies, and penalties provided for in chapter 51-15.

Source:

S.L. 1937, ch. 110, § 11; R.C. 1943, § 43-0714; S.L. 1963, ch. 304, § 9; 1993, ch. 419, § 3; 1995, ch. 397, § 7; 1997, ch. 365, § 7; 2003, ch. 357, § 2; 2005, ch. 357, § 4; 2007, ch. 359, § 4.

Collateral References.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-07-15. Procedure for revocation or suspension of license — Restitution — Civil penalties — Appeal.

The registrar shall review each complaint filed under section 43-07-14. If the registrar determines a written complaint filed under section 43-07-14 provides sufficient facts upon which a reasonable person could conclude that one or more of the acts or omissions set forth in section 43-07-14 has been committed, the registrar may initiate an adjudicative proceeding in accordance with chapter 28-32. If, after an adjudicative proceeding or as part of an informal disposition under chapter 28-32, the registrar determines the licensee is guilty of an act or omission charged or if the licensee admits guilt to an act or omission charged, the registrar may suspend or revoke the contractor’s license, order a civil penalty of not more than one thousand dollars, order restitution in an amount not more than five thousand dollars, or impose some lesser sanction or remedy. The registrar may suspend the contractor’s license for a period of not more than sixty months. The registrar may not renew, reinstate, or issue a new license until the licensee has paid any civil penalty or restitution imposed under this section. The registrar may bring an action in district court to recover restitution or penalties under this section. A contractor aggrieved by a decision of the registrar in revoking or suspending the contractor’s license or ordering restitution or penalties may appeal the decision to the district court of that person’s county of residence or Burleigh County. Any licensee may not obtain a license under any name during the period of revocation or suspension. A “licensee” whose license is revoked or suspended includes any officer, director, agent, member, or employee of the licensee. The provisions of chapter 28-32 govern any appeal and proceedings under this section.

Source:

S.L. 1937, ch. 110, § 11; R.C. 1943, § 43-0715; S.L. 1963, ch. 304, § 10; 1993, ch. 419, § 4; 1997, ch. 365, § 8; 2001, ch. 293, § 20; 2003, ch. 357, § 3; 2015, ch. 291, § 6, effective July 1, 2015.

43-07-16. Cancellation of license — Appeal. [Repealed]

Repealed by S.L. 1963, ch. 304, § 16.

43-07-17. Revocation of license — Relicensing.

A licensee whose license has been revoked may not be relicensed for a period of up to five years.

Source:

S.L. 1937, ch. 110, § 12; R.C. 1943, § 43-0717; S.L. 1963, ch. 304, § 11; 1993, ch. 419, § 5; 1997, ch. 365, § 9; 1999, ch. 373, § 4.

43-07-18. Penalty. [Repealed]

Source:

S.L. 1937, ch. 110, § 13; R.C. 1943, § 43-0718; S.L. 1963, ch. 304, § 12; 1965, ch. 106, § 473; 1995, ch. 397, § 8; 1999, ch. 373, § 5; 2005, ch. 357, § 5; repealed by 2015, ch. 290, § 3, effective April 15, 2015.

43-07-19. Nonresident contractors — Agent for service of process.

Every applicant for a contractor’s license who is not a resident of the state of North Dakota, by signing and filing the application, appoints the registrar as the applicant’s true and lawful agent upon whom may be served all lawful process in any action or proceeding against such nonresident contractor. The appointment in writing is evidence of the contractor’s consent that any process against the contractor which is so served upon the registrar is of the same legal force and effect as if served upon the contractor personally within this state. Registered foreign corporations entitled to do business in this state according to chapter 10-19.1, registered foreign limited liability companies entitled to do business in the state according to chapter 10-32.1, foreign limited liability partnerships entitled to do business in the state according to chapter 45-22, and foreign limited partnerships entitled to do business in the state according to chapter 45-10.2 and having a current registered agent and registered address on file in the registrar’s office do not need to appoint the registrar as agent for service of process under this section. Within ten days after service of the summons upon the registrar, notice of the service with the summons and complaint in the action must be sent to the defendant contractor at the defendant contractor’s last-known address by registered mail with return receipt requested and proof of the mailing must be attached to the summons. The registrar shall keep a record of all process served upon the registrar under this section, showing the day and hour of service. If service of process was made under this section, the court, before entering a default judgment, or at any stage of the proceeding, may order the continuance as may be necessary to afford the defendant contractor reasonable opportunity to defend any action pending against the defendant contractor.

Source:

S.L. 1963, ch. 304, § 13; 1981, ch. 438, § 5; 1993, ch. 54, § 106; 1999, ch. 50, § 62; 1999, ch. 373, § 6; 2003, ch. 357, § 4; 2005, ch. 384, § 5; 2015, ch. 87, § 25, effective July 1, 2015; 2019, ch. 343, § 10, effective August 1, 2019.

43-07-20. Employment preference in contract.

In all contracts, except those which involve federal-aid funds and when a preference or discrimination would be contrary to a federal law or regulation, hereafter let for state, county, city, school district, or township construction, repair, or maintenance work under any laws of this state, there shall be inserted a provision by which the contractor must give preference to the employment of bona fide North Dakota residents, as determined by section 54-01-26, with preference given first to honorably discharged disabled veterans and veterans of the armed forces of the United States, as defined in section 37-19.1-01, who are deemed to be qualified in the performance of that work. The preference shall not apply to engineering, superintendence, management, or office or clerical work.

No contract shall be let to any person, firm, association, cooperative, corporation, or limited liability company refusing to execute an agreement containing the aforementioned provisions.

Source:

S.L. 1971, ch. 431, § 1; 1973, ch. 347, § 1; 1993, ch. 54, § 106; 1995, ch. 399, § 1.

Cross-References.

Preference to North Dakota bidders and sellers, see N.D.C.C. §§ 44-08-01, 44-08-02.

Collateral References.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Validity of state statute or local ordinance requiring, or giving preference to, the employment of residents by contractors or subcontractors engaged in, or awarded contracts for, the construction of public works or improvements, 36 A.L.R.4th 941.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

43-07-21. Penalty — Injunction proceedings.

Any person violating any provisions of section 43-07-20 is guilty of a class B misdemeanor. A repeated violation constitutes legal grounds for a court, on proper application by the labor commissioner, to grant an injunction without requiring the posting of a bond or undertaking.

Source:

S.L. 1971, ch. 431, § 2; 1975, ch. 106, § 474; 1995, ch. 399, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-07-22. Enforcement responsibility.

The labor commissioner has the primary responsibility of enforcing sections 43-07-20 and 43-07-21 and may make reciprocal agreements or arrangements with any other state or territory exempting the application of sections 43-07-20 through 43-07-22, and may examine records of employment relative to public contracts for such purposes. However, any person being adversely affected because of noncompliance with section 43-07-20 may also institute an appropriate civil action, and any person having knowledge of a violation may file a criminal complaint with the proper official.

Source:

S.L. 1971, ch. 431, § 3; 1983, ch. 82, § 88.

43-07-23. Allowable retention of estimates — Interest on retainage.

Contracts entered between persons for the performance of work to be done by a contractor, except those contracts subject to section 40-22-37 or 48-01.2-13, or contracts governed by federal statutes or regulations which require other provisions with respect to retention, are subject to a maximum retention on amounts due under the contract as follows: retention of ten percent of each estimate presented is allowable until such time as the project is fifty percent complete, with no further retainage on estimates during the continuance of the contract. If the owner, governing board, or authorized committee invests the retained estimate funds, the interest earned on those retained funds is payable at the time of final payment on the contract to the contractor on whose account the moneys were held.

Source:

S.L. 1981, ch. 439, § 1; 2007, ch. 403, § 13.

43-07-24. Duty to supply license number when applying for building permit — Display of number.

When applying for a building permit, a contractor shall supply the permit issuing official that contractor’s license number. That official shall enter those numbers on the permit. A person performing general contractor’s work on that person’s own property, even if exempt from the licensing requirements of this chapter, shall, when applying for a building permit, supply the building permit issuing official the license number, as soon as available, of each subcontractor engaged on the project and doing work covered by the permit. That official shall enter each number so supplied before inspection of the work.

Source:

S.L. 1987, ch. 512, § 1.

43-07-25. Licensed contractors’ list.

On request, the registrar shall provide city and county enforcement officials with a list of contractors licensed under this chapter. The registrar shall also provide similar information to persons governed by section 43-07-24. Whenever the registrar obtains information on the activities of a contractor doing business in this state of which officials of workforce safety and insurance, job service North Dakota, or tax commissioner may be unaware and that may be relevant to the duties of those officials, the registrar shall provide any relevant information to those officials for the purpose of administering their duties.

Source:

S.L. 1987, ch. 512, § 2; 1989, ch. 509, § 1; 2003, ch. 561, § 3.

43-07-26. Warranty repairs — Required notice.

Before undertaking any repair, other than emergency repair, or instituting any action for breach of warranty in the construction of a one-family or two-family dwelling, or an improvement with a value exceeding two thousand dollars to a dwelling, the purchaser or owner shall give the contractor written notice by mail, within six months after knowledge of the defect, advising the contractor of any defect and giving the contractor a reasonable time to comply with this section. Within a reasonable time after receiving the notice, the contractor shall inspect the defect and provide a response to the purchaser or owner, and, if appropriate, remedy the defect within a reasonable time thereafter. The contractor shall provide the purchaser or owner written notice of the requirements of this section at the time of closing for the property or, in the case of an improvement, at the time of completion of the improvement. For the purposes of this section, “reasonable time” means within thirty business days after the notice is mailed or any shorter period of time as may be appropriate under the circumstances.

Source:

S.L. 2005, ch. 358, § 1.

CHAPTER 43-08 Dentists [Repealed]

[Repealed by S.L. 1959, ch. 319, § 27]

CHAPTER 43-09 Electricians

43-09-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Apprentice electrician” means an individual who is learning the trade under the personal supervision of a state-licensed electrician.
  2. “Board” means the state electrical board.
  3. “Class B electrician” means an individual who has the necessary qualifications, training, and technical knowledge to wire, install, and repair electrical apparatus and equipment in accordance with the standard rules and regulations governing such work, who has eighteen months’ experience in farmstead or residential wiring, and passed an examination before the state electrical board based upon the national electrical code as it applies to farmstead or residential wiring.
  4. “Journeyman electrician” means an individual who has the necessary qualifications, training, and technical knowledge to wire, install, and repair electrical apparatus and equipment and power limited systems in accordance with the standard rules and regulations governing such work.
  5. “Licensee” means an individual who holds a valid license issued by the board.
  6. “Master electrician” means an individual who has the necessary qualifications, training, experience, and technical knowledge to plan, lay out, and supervise the installation and repair of electrical wiring apparatus, and equipment for electric light, heat, power, and power limited systems, in accordance with the standard rules and regulations governing such work.
  7. “Nonelectrical system” means a system as defined by the articles contained in chapter 8 and other articles which contains class II or class III circuits and systems as defined by the national electrical code, as adopted by the board. Although the board may expand this definition, the board may not narrow this definition. The term does not include a circuit or system that is installed:
    1. Within an area of special occupancies, as defined under articles 500 through 517 of the national electrical code.
    2. For heat, light, or power.
    3. For the control of heat, light, or power, unless the circuit or system employs digital communication.
  8. “Power limited electrician” means an individual who has the necessary qualifications, training, experience, and technical knowledge to plan, layout, and supervise the installation and repair of a power limited system.
  9. “Power limited system” means a system as defined by the articles contained in chapter 8 and other articles which contains class II or class III circuits and systems as defined by the national electrical code, as adopted by the board. Although the board may expand this definition, the term does not include a nonelectrical system.

Source:

S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0901; S.L. 1949, ch. 286, § 1; 1949, ch. 287, § 1; 1955, ch. 282, § 1; 1957 Supp., § 43-0901; S.L. 1967, ch. 347, § 1; 2019, ch. 344, § 1, effective August 1, 2019.

43-09-02. State electrical board — Members — Terms of office — Vacancies.

The state electrical board must consist of five members appointed by the governor for a term of five years with their terms of office so arranged that one term and only one term expires on June thirtieth of each year. One member of the board shall represent the public and may not be directly associated with the electrical industry. The board must include a master electrician who is a contractor, a journeyman electrician, a consumer member of a rural electric cooperative, and a person associated with an investor-owned utility. A member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until that member’s successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term of office.

Source:

S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; S.L. 1941, ch. 227, § 1; R.C. 1943, § 43-0902; S.L. 1949, ch. 287, § 2; 1955, ch. 282, § 2; 1957 Supp., § 43-0902; S.L. 1967, ch. 347, § 2; 1981, ch. 435, § 6.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-09-03. Qualifications of members of board. [Repealed]

Repealed by S.L. 1949, ch. 287, § 11.

43-09-04. Officers of board — Compensation of members.

The members of the board shall select from their members a president, a treasurer, and a secretary. Each appointive member of the board is entitled to receive such amount as may be set by the board, and in addition thereto, each member shall receive the necessary and actual expenses incurred by the member in the discharge of the member’s duties. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09.

Source:

S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; 1941, ch. 227, § 1; R.C. 1943, § 43-0904; S.L. 1949, ch. 287, § 3; 1957 Supp., § 43-0904; S.L. 1967, ch. 347, § 3; 1975, ch. 398, § 1; 1977, ch. 399, § 1; 2011, ch. 307, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitations on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-09-05. Powers and duties of state electrical board — Biennial report.

The board shall adopt a seal and may adopt reasonable rules to carry out this chapter. The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. The board shall appoint qualified inspectors. Upon receipt of notice of completion of any electrical wiring or power limited system installation involving a value of five hundred dollars or more, the inspectors shall inspect the electrical or power limited system installation and approve or condemn that installation. The inspector shall make a report of the inspection on forms prescribed by the board.

Source:

S.L. 1917, ch. 118, §§ 1, 6, 8; 1919, ch. 123, §§ 1, 6; 1925 Supp., §§ 578b1, 578b6; S.L. 1941, ch. 227, §§ 1, 6; R.C. 1943, § 43-0905; S.L. 1949, ch. 287, § 4; 1957 Supp., § 43-0905; S.L. 1963, ch. 346, § 39; 1973, ch. 403, § 29; 1975, ch. 398, § 2; 1975, ch. 466, § 31; 1983, ch. 476, § 1; 1995, ch. 350, § 30; 2017, ch. 305, § 1, effective August 1, 2017; 2019, ch. 344, § 2, effective August 1, 2019.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Administrative Search Warrants.

North Dakota State Electrical Board had the authority to seek an administrative search warrant to inspect electrical work done on a homeowner’s addition to his home, but the issuance of the administrative search warrant was not a final, appealable order. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784, 2008 N.D. LEXIS 189 (N.D. 2008).

43-09-06. Meetings of board.

The board shall hold a meeting in January of each year in Bismarck and may hold such other meetings as are necessary to conduct examinations and perform the other duties coming before it. Special meetings must be held at the time and place determined by the president, and upon ten days’ written notice given by the president to each member of the board.

Source:

S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; S.L. 1941, ch. 227, § 1; R.C. 1943, § 43-0906; S.L. 1967, ch. 347, § 4.

43-09-07. Expenses of board — How paid.

All reasonable and necessary expenses incurred in conducting the business of the board must be allowed and paid by the board.

Source:

S.L. 1919, ch. 123, § 3; 1925 Supp., § 578b3; S.L. 1941, ch. 227, § 3; R.C. 1943, § 43-0907.

43-09-08. Treasurer to hold moneys of board — Use — Disbursement. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See N.D.C.C. § 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-09-09. License required — Examination — Board to issue license.

  1. A person may not undertake or plan to undertake with another person to plan, lay out, supervise, install, make additions, make alterations, or make repairs, in the installation of wiring, apparatus, or equipment for electric light, heat, or power or for a power limited system, unless licensed by the board.
  2. The board shall examine an applicant for licensure and if, upon a technical and practical examination, the applicant is found to possess the required knowledge and skill and to be versed in the laws of electricity, the applicant shall be issued a license in the class for which the applicant was examined. The license must be signed by the president and the secretary of the board and attested by the seal of the board.
  3. Each licensee or permitholder shall report that individual’s licensing or renewals to the electrical inspector, if there is one, in the city in which that individual operates.

Source:

S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0909; S.L. 1955, ch. 282, § 3; 1957 Supp., § 43-0909; S.L. 1993, ch. 54, § 106; 2019, ch. 344, § 3, effective August 1, 2019.

43-09-09.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as an electrician or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 24.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-09-09.2. Advertising prohibited — Exceptions — Liability — Penalty.

  1. Except as provided in this section, if a license is required under section 43-09-09, a person may not advertise to contract for electrical services without being licensed as or being associated with a class B electrician, master electrician, or power limited electrician, unless that person intends to contract the electrical services with a licensed electrical contractor.
  2. If a person associates with an electrician under subsection 1 and that association ends, that person is jointly and severally liable for any contracts entered under that association.
    1. A person violating this section is guilty of a class B misdemeanor for a first conviction, but no fine in excess of one hundred dollars and no term of imprisonment may be imposed.
    2. A person violating this section is guilty of a class A misdemeanor for a second or subsequent conviction, but the penalties are as follows:
      1. For a second conviction, no fine in excess of one thousand dollars and no term of imprisonment may be imposed.
      2. For a third or subsequent conviction, a fine not to exceed one thousand dollars, or imprisonment not to exceed thirty days, or both, may be imposed.

Source:

S.L. 1989, ch. 510, § 1; 1995, ch. 400, § 1; 2015, ch. 292, § 1, effective August 1, 2015; 2019, ch. 344, § 4, effective August 1, 2019.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-09-10. Types of licenses.

The classes of electricians who may be licensed under section 43-09-09 are:

  1. Master electrician.
  2. Journeyman electrician.
  3. Class B electrician.
  4. Power limited electrician.

Source:

S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0910; S.L. 1955, ch. 282, § 4; 1957 Supp., § 43-0910; 2019, ch. 344, § 5, effective August 1, 2019.

43-09-11. Qualifications.

An applicant for an electrician’s license must have the following experience and training:

  1. For licensure as a master electrician, an applicant must have completed one year’s experience as a licensed journeyman electrician.
  2. For licensure as a journeyman electrician, an applicant must have:
    1. Completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment, which experience may not be obtained in less than three years.
    2. Effective for an applicant who registered with the board as an apprentice after January 31, 2008, completed at least one of the following:
      1. Successfully completed apprenticeship training approved by the board and completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment.
      2. Successfully completed an appropriate course of study, which may not be less than two years or the equivalent of two years, at a board-approved institution of higher education and completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment. The board may determine equivalent hours of education that may be applied as a credit against the eight thousand hours’ experience requirement under this paragraph.
  3. For licensure as a class B electrician, eighteen months’ experience in farmstead or residential wiring.
  4. For licensure as a power limited electrician:
    1. Hold a valid board-recognized tradesman certification; or
    2. Possess the necessary work experience and training, as approved by the board.

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0911; S.L. 1949, ch. 287, § 5; 1955, ch. 282, § 5; 1957 Supp., § 43-0911; S.L. 1967, ch. 360, § 5; 2007, ch. 360, § 1; 2019, ch. 344, § 6, effective August 1, 2019; 2019, ch. 345, § 1, effective March 7, 2019.

Note.

Section 43-09-11 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 344, Session Laws 2019, Senate Bill 2056; and Section 6 of Chapter 345, Session Laws 2019, House Bill 1157.

43-09-12. Examination — Requirements.

Each applicant for an electrician’s license shall pay the examination fee and shall take an oath and submit written evidence that the applicant has had the required experience.

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0912; S.L. 1993, ch. 54, § 106; 2019, ch. 344, § 7, effective August 1, 2019.

43-09-13. License fees.

Examination and annual license fees required to be paid for an electrician’s license must be set by the board.

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0913; S.L. 1949, ch. 287, § 6; 1955, ch. 282, § 6; 1957 Supp., § 43-0913; S.L. 1967, ch. 347, § 6; 1987, ch. 513, § 1.

43-09-13.1. Apprentice electrician registration.

An apprentice electrician shall register with the state electrical board within the first six months of employment and shall pay an annual registration fee in an amount set by the board. An apprentice electrician may work on installations only under the personal supervision of a licensed electrician as provided in section 43-09-18.

Source:

S.L. 1967, ch. 347, § 7; 1987, ch. 513, § 2; 1993, ch. 112, § 2.

43-09-13.2. Inspectors — License required — Exception.

An individual employed by the state electrical board or a political subdivision to inspect electrical or power limited system installations must be licensed as a journeyman electrician or master electrician.

Source:

S.L. 1989, ch. 511, § 1; 2019, ch. 344, § 8, effective August 1, 2019.

43-09-14. Master electrician and class B electrician — Undertaking — Fund. [Repealed]

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0914; S.L. 1949, ch. 287, § 7; 1955, ch. 282, § 7; 1957 Supp., § 43-0914; S.L. 1979, ch. 461, § 1; 1983, ch. 476, § 2; 1987, ch. 513, § 3; 1999, ch. 374, § 1; 2015, ch. 292, § 2, effective August 1, 2015; repealed by 2015, ch. 292, § 3, effective August 1, 2015.

43-09-15. Renewal of license — Denial, suspension, or revocation of licenses.

  1. An electrician’s license may be issued for a term of only one year, but may be renewed without examination upon the payment of the proper fee. If the licensee fails to renew the license for a period of three consecutive years or more, the licensee is required to appear for re-examination. The state electrical board may deny, suspend, revoke, or refuse to renew any license issued or applied for under this chapter for any of the following reasons:
    1. Failure or refusal to maintain or adhere to the minimum standards set forth in the electrical code referred to in section 43-09-21.
    2. Any cause for which the issuance of the license could have been refused had that information then existed and been known to the board.
    3. Commitment of any act of gross negligence, incompetency, or misconduct in the practice of the profession regulated under this chapter.
    4. Material misstatement, misrepresentation, or fraud in obtaining the license.
    5. After due notice, failed or refused to correct, within the specified time, any installation not in compliance with this chapter.
    6. Failure or refusal to make a deposit or acquire public liability insurance as required by section 43-09-20.
    7. Failure to pay or enter a written contract for repayment, under a payment schedule acceptable to the board, any financial obligation to the board.
    8. Failure to furnish certification of completion of education as required under section 43-09-15.1.
  2. If an individual’s license is denied, suspended, or revoked by the board, or that individual is refused a license by the board, that individual may appeal to the appropriate court.

Source:

S.L. 1917, ch. 118, §§ 2, 4; 1919, ch. 123, §§ 2, 4; 1925 Supp., §§ 578b2, 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, §§ 2, 4; R.C. 1943, § 43-0915; S.L. 1967, ch. 347, § 8; 1983, ch. 476, § 3; 1987, ch. 513, § 4; 1989, ch. 512, § 1; 2019, ch. 344, § 9, effective August 1, 2019; 2019, ch. 345, § 2, effective March 7, 2019.

Note.

Section 43-09-15 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 345, Session Laws 2019, Senate Bill 2056; and Section 9 of Chapter 344, Session Laws 2019, House Bill 1157.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-09-15.1. Education.

An applicant for renewal of an electrician’s license pursuant to section 43-09-15 must have successfully completed at least eight hours each biennium, of education relating to the standards set forth in section 43-09-21 or as otherwise prescribed by the board. The board may not require more than sixteen hours of continuing education in each biennium. The board shall conduct education sessions each year at not fewer than six locations throughout the state. Attendance at such sessions, or attendance at other education sessions certified by the board as approved, fulfills the educational requirements of this section. The board may charge a fee for attendance at the education sessions at an amount to be determined by the board, but not to exceed ten dollars per attendee for each session. The board may expend funds to educate and encourage potential electricians into the trade.

Source:

S.L. 1989, ch. 512, § 2; 2019, ch. 344, § 10, effective August 1, 2019; 2019, ch. 345, § 3, effective March 7, 2019.

Note.

Section 43-09-15.1 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 345, Session Laws 2019, Senate Bill 2056; and Section 10 of Chapter 344, Session Laws 2019, House Bill 1157.

43-09-16. When license not required.

The following persons are not required to be licensed by and are not subject to regulation by the board under this chapter:

  1. Employees of public utilities engaged in the manufacture and distribution of electrical energy while engaged in work directly pertaining to the manufacture and distribution of electrical energy. This exemption terminates at the first point of service attachment, except for the installing or testing of electric meters and measuring devices and the maintenance of electric meters and measuring devices.
  2. Employees, independent contractors, or subcontractors of a company that is a telecommunication carrier as defined under section 57-34-01 or that is a satellite or cable systems provider, while acting in the scope of employment or the terms of the contract.
  3. Employees, independent contractors, or subcontractors of dealers in household appliances, such as room air-conditioners, clothes dryers, dishwashers, freezers, garbage disposals, refrigerators, stoves, washing machines, water heaters, and similar appliances while installing and connecting such appliances to an existing electrical receptacle.
  4. A representative of a manufacturing firm that is installing or modifying controls of wiring solely on industrial machinery that is for use by the firm itself, and performed by or under the direction of a registered professional engineer who issues a state-accepted evaluation, which is to be maintained with the equipment.
  5. An individual who is installing a nonelectrical system.
  6. An individual who is installing a power limited system that is installed within a residential dwelling or is installed with a factory connector or cord powered by an existing electrical receptacle.

Source:

S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0916; S.L. 1975, ch. 399, § 1; 1999, ch. 375, § 1; 2019, ch. 344, § 11, effective August 1, 2019.

43-09-17. Journeyman electrician’s permit.

The board, upon the recommendation of one master electrician and two journeyman electricians, may issue a permit for a journeyman electrician to engage in the journeyman electrician’s trade until the next meeting of the board for the examination of applicants. Such permit is not renewable.

Source:

S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0917.

43-09-18. Apprentice.

An individual may serve as an apprentice under a licensed master electrician or power limited electrician, but a master electrician or power limited electrician may not allow an apprentice to work on any installation without personal supervision of a licensed electrician.

Source:

S.L. 1917, ch. 118, § 5; 1919, ch. 123, § 5; 1925 Supp., § 578b5; S.L. 1941, ch. 227, § 5; R.C. 1943, § 43-0918; 2019, ch. 344, § 12, effective August 1, 2019.

43-09-19. Report of work done by licensee.

Every person licensed under the provisions of this chapter and doing electrical work shall report the same to the secretary of the board upon blanks furnished by the board for that purpose.

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0919; S.L. 1955, ch. 282, § 8; 1957 Supp., § 43-0919.

43-09-20. Installations made with master electrician, class B electrician, or power limited electrician — Requirement for liability insurance.

  1. A contract, agreement, or undertaking with another person for the installation of electrical wiring or power limited wiring or the installation of electrical or power limited system parts of other apparatus may not be entered by anyone other than a master electrician or power limited electrician. A class B electrician may not enter a contract, undertaking, or agreement for the installation of electrical wiring, except for:
    1. Farmstead electrical wiring; or
    2. Residential electrical wiring in one or two family dwellings located in a city with a population of two thousand five hundred or fewer.
  2. If a licensee is acting as a contractor, that licensee shall submit to the board evidence of the existence of public liability insurance with a licensed insurance carrier, with policy limits of at least five hundred thousand dollars.

Source:

S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0920; S.L. 1949, ch. 287, § 8; 1955, ch. 282, § 9; 1957 Supp., § 43-0920; S.L. 1983, ch. 476, § 4; 2011, ch. 307, § 2; 2019, ch. 344, § 13, effective August 1, 2019.

43-09-21. Standards for wiring, apparatus, and equipment.

All electrical and power limited wiring, apparatus, or equipment must comply with the rules of the board made under authority of the laws of this state and in conformity with the approved methods of construction for safety to life and property. The regulations in the national electrical code and the national electrical safety code as approved by the American national standards institute are prima facie evidence of these approved methods. Although a city may make more stringent requirements by ordinance, application of the ordinance must be limited to individuals licensed by the board under this chapter. An electrical or power limited system installation may not be connected for use until proof has been furnished to the person supplying electrical energy that there is compliance with the applicable regulations. The manufacturer of a new manufactured building or modular unit shall make any changes required for the proof within fourteen days from the notice that the building or unit does not comply with the applicable regulations. This section does not apply to the movement of a new manufactured building or modular unit into or within this state before the process of being connected for use.

Source:

S.L. 1917, ch. 118, §§ 6, 8; 1919, ch. 123, § 6; 1925 Supp., § 578b6; S.L. 1941, ch. 227, § 6; R.C. 1943, § 43-0921; S.L. 1985, ch. 476, § 1; S.L. 1993, ch. 54, § 106; 1999, ch. 351, § 2; 2019, ch. 344, § 14, effective August 1, 2019.

43-09-22. Inspection of installation — Condemnation.

  1. The board has jurisdiction over and shall provide inspection for all electrical installations. The board has jurisdiction over and shall provide inspection for all power limited system installations. If there is a disagreement between an electrician and an inspector over interpretation or over a correction for violation issued by any inspector, the executive director of the board shall review the identified disagreement and render a final decision, which either party may appeal to the board.
  2. The executive director of the board, as authorized by the board, may condemn installations hazardous to life and property or may order specific corrections to be made. The executive director may order disconnection of service after notice to the owner of the property. The order is subject to the owner’s right of appeal to the board. A condemned installation may not be reconnected for service until proof has been furnished that the installation has been brought up to the required standards.
  3. The board may charge a master electrician, class B electrician, or power limited electrician responsible for the installation a fee for inspections.
  4. A city may make provisions for inspection of all electrical and power limited systems installed within the corporate limits of the city. A city shall register the name of the inspector with the board within ten days of appointment. A city may not require inspection of an installation that is outside the jurisdiction of the board.

Source:

S.L. 1917, ch. 118, §§ 6, 8; 1919, ch. 123, § 6; 1925 Supp., § 578b6; S.L. 1941, ch. 227, § 6; R.C. 1943, § 43-0922; S.L. 1997, ch. 366, § 1; 2019, ch. 344, § 15, effective August 1, 2019.

Notes to Decisions

Exhaustion of Remedies.

Homeowner could not challenge a district court’s decision to issue an administrative search warrant and order compelling an electrical inspection of their home because the decision was not a final, appealable order under N.D.C.C. § 28-27-02 because the statutory scheme contemplated additional proceedings before the State Electrical Board. N.D.C.C. § 43-09-22 provides a right of appeal from an inspector’s order and homeowner had not established that he had exhausted his administrative remedies before the Board. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784, 2008 N.D. LEXIS 189 (N.D. 2008).

43-09-23. Criminal penalty — Civil proceedings.

A person that violates any of the provisions of this chapter is guilty of a class B misdemeanor. In addition to criminal proceedings, the board may commence administrative or civil court proceedings as follows:

  1. The board may issue a cease and desist order against a person allegedly making or offering to make installations in violation of section 43-09-09 or 43-09-09.2 based upon information provided to the board by its inspectors or other persons, by investigation reports, affidavits, complaints of witnesses, or oral testimony given to the board at a regular or special board meeting. Violation of the cease and desist order may be considered by the court in issuing a temporary or permanent restraining order and in ordering the payment of costs and attorney’s fees in proceedings authorized under this section.
  2. The board may apply to the district court in the county in which the violations have occurred for a temporary or permanent injunction under chapter 32-06, enjoining persons from performing, advertising, or contracting for making installations without a valid license issued by the board in violation of section 43-09-09 or 43-09-09.2. The court may not require a written undertaking, security, or bond as a basis for issuing any temporary or permanent restraining order under this section unless the court specifically orders and states the basis for requiring the security. Upon a determination that a violation of section 43-09-09 or 43-09-09.2 has occurred, the court may assess against the defendants the actual costs incurred and reasonable attorney’s fees necessary for the investigation and court proceedings against the unlicensed person.
  3. After an administrative hearing has been conducted by the board under chapter 28-32, an appeal from an order of the board or from the assessment of costs and attorney’s fees may be taken to the district court under chapter 28-32.

Source:

S.L. 1917, ch. 118, § 7; 1919, ch. 123, § 7; 1925 Supp., § 578b7; S.L. 1927, ch. 139, § 7; 1941, ch. 227, § 7; R.C. 1943, § 43-0923; S.L. 1975, ch. 106, § 475; 1997, ch. 366, § 2; 2019, ch. 344, § 16, effective August 1, 2019.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-09-24. Special emergency. [Repealed]

Repealed by omission from this code.

43-09-25. License to nonresidents — Reciprocity.

To the extent that other states which provide for the licensing of electricians provide for similar action, the state electrical board may grant licenses of the same grade or class to electricians licensed by other states, upon payment by the applicant of the required fee, after being furnished with proof that the qualifications of the applicant are equal to the qualifications of holders of similar licenses in North Dakota.

Source:

S.L. 1955, ch. 285, § 1; R.C. 1943, 1957 Supp., § 43-0925.

43-09-26. Exemption for coal mines.

The jurisdiction of the board and other requirements of this chapter do not apply to installations, wiring, apparatus, or equipment that are part of a coal mine permitted by the public service commission and are subject to the jurisdiction of the federal mine safety and health administration.

Source:

S.L. 1993, ch. 112, § 3.

CHAPTER 43-10 Funeral Service Practitioners

43-10-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the state board of funeral service.
  2. “Crematorium” means a furnace or establishment for the cremation of corpses.
  3. “Embalming” means preparing dead human bodies for final disposition or removal by the injection of antiseptic or preservative preparations into the skin, the blood vessels, or cavities of the body, the external application of antiseptic solution, taking charge of the remains of those dead of any communicable disease, preparing dead human bodies for shipment or holding oneself out to do any of the above acts by advertising or any other means.
  4. “Final disposition” means the entombment, burial in a cemetery, cremation, removal from the state, or whole-body donation to a school of medicine of a dead human body.
  5. “Funeral directing” means the care and disposal of the body of a deceased person; the preserving, disinfecting, and preparing, by embalming or otherwise, the body of a deceased person for funeral services, transportation to a point of final disposition, burial, or cremation; or arranging, directing, or supervising a funeral, memorial service, or gravesite service.
  6. “Funeral establishment” means any place or premises devoted to or used in the holding, care, or preparation of a dead human body for final disposition or transportation or for mourning or funeral ceremony purposes.
  7. “Funeral practitioner” means a person licensed by the board to practice funeral directing and embalming.
  8. “Intern embalmer” means a person registered with the board to engage in learning the practice of embalming under the instruction and personal supervision of a duly licensed funeral practitioner.
  9. “Practice of funeral service” means to engage in funeral directing or embalming.
  10. “Preparation of the body” means embalming of the body or such items of care as washing, disinfecting, shaving, positioning of features, restorative procedures, care of hair, application of cosmetics, dressing, and casketing.

Source:

R.C. 1943, § 43-1001; S.L. 1989, ch. 513, § 1; 1997, ch. 367, § 1; 2017, ch. 92, § 22, effective August 1, 2017.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

Licensure of funeral establishments, see N.D.C.C. §§ 43-10-21 to 43-10-24.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Liability in damages for withholding body from relatives, 48 A.L.R.3d 240.

Civil liability of undertaker in connection with embalming or preparation of body for burial, 48 A.L.R.3d 261.

Enforcement of preference expressed by decedent as to disposition of his body after death, 54 A.L.R.3d 1037.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-02. State board of funeral service — Members — Appointment — Qualifications — Term of office — Oath — Vacancies — Removal.

The board consists of the state health officer and three persons appointed by the governor. Each member appointed by the governor shall serve for a term of four years and until a successor is appointed and qualified. The terms of office of the appointed members expire on the thirtieth day of June and must be so arranged that only one expires in any one year. The appointed members of the board must be persons practicing embalming in this state and must have practiced for a minimum of three years in North Dakota. Each member shall qualify by taking the oath of office required of civil officers. The secretary of state may administer the oath and it must be filed in the office of the secretary of state. A vacancy on the board must be filled by appointment by the governor for the unexpired term. The governor may remove any member of the board for good cause.

Source:

S.L. 1905, ch. 111, §§ 1, 2; R.C. 1905, §§ 340, 341; C.L. 1913, §§ 540, 541; R.C. 1943, § 43-1002; S.L. 1989, ch. 513, § 2; 1997, ch. 367, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

State health officer, see N.D.C.C. § 23-01-05.

43-10-03. Officers of board — Compensation of members — Treasurer’s bond.

The members of the board may elect from their number a president, a secretary, and a treasurer. The treasurer must be bonded for the faithful discharge of the treasurer’s duties in the sum of two thousand dollars. The members shall receive their actual traveling expenses which may not exceed the amount specified in section 54-06-09 and other necessary expenses.

Source:

S.L. 1905, ch. 111, §§ 2, 8; R.C. 1905, §§ 341, 347; C.L. 1913, §§ 541, 547; R.C. 1943, § 43-1003; S.L. 1975, ch. 258, § 19; 1983, ch. 477, § 1; 1989, ch. 513, § 3.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-10-04. Meetings of the board — Quorum.

The board shall meet at least once a year, and may hold such special meetings as the proper and efficient discharge of its duties requires. Timely notice of all meetings must be given to every member of the board. Three members constitute a quorum for the transaction of business.

Source:

S.L. 1905, ch. 111, § 3; R.C. 1905, § 342; C.L. 1913, § 542; R.C. 1943, § 43-1004; S.L. 1989, ch. 513, § 4; 1997, ch. 367, § 3.

43-10-05. Power of board to adopt rules for transaction of business — Seal — License fees.

The board may:

  1. Adopt rules to administer and carry out this chapter.
  2. Adopt rules regulating the practice, supervision, and instruction of intern embalmers.
  3. Adopt rules relating to the professional conduct of funeral directors and intern embalmers.
  4. Adopt such rules for the transaction of its business and the management of its affairs as it deems expedient and proper to administer this chapter.
  5. Adopt and use a seal.
  6. Adopt rules requiring each funeral home, at the time of selection of merchandise and services from that funeral home, to disclose in writing to the person or persons making the selection:
    1. The total price at retail of the merchandise and services selected and a listing of what merchandise and services are included within such total.
    2. The price at retail of each item of supplemental service or merchandise requested.
    3. The amount of cash advances to the extent that the advances are known or can be ascertained at the time of the selection.
    4. The terms of payment for merchandise and services.
  7. Establish license and renewal fees for funeral service practitioners and funeral establishments within the limits imposed by this chapter.
  8. Adopt rules regulating the operation of funeral establishments and crematoriums.
  9. Appoint or employ persons to assist the board in carrying out its duties under this chapter.
  10. Accept and investigate complaints relating to conduct governed by this chapter.
  11. Issue subpoenas, examine witnesses, administer oaths, and investigate allegations of practices violating the provisions of this chapter.

Source:

S.L. 1905, ch. 111, §§ 2, 6; R.C. 1905, §§ 341, 345; C.L. 1913, §§ 541, 545; R.C. 1943, § 43-1005; S.L. 1975, ch. 400, § 1; 1979, ch. 462, § 1; 1989, ch. 513, § 5; 1997, ch. 367, § 4.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-10-06. Duty of board to adopt rules to prevent the spread of contagious diseases.

The board shall adopt such rules as it deems proper for the disinfection of a deceased person and of bedding, clothing, apartments, or anything likely to be infected in case of death from a contagious or infectious disease. The rules must be disclosed to every person engaged in embalming and funeral service in this state.

Source:

S.L. 1905, ch. 111, § 4; R.C. 1905, § 343; C.L. 1913, § 543; R.C. 1943, § 43-1006; S.L. 1989, ch. 513, § 6.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

43-10-06.1. State board of funeral service to establish means of disposition.

The state board of funeral service shall provide by rule for the appropriate means of disposition for cremated remains held by a funeral home that have not been claimed as provided in section 43-10-26.

Source:

S.L. 1989, ch. 514, § 1.

43-10-06.2. Continuing education requirements.

The board may adopt rules establishing requirements for the continuing education of persons licensed under this chapter. The board may refuse to renew, suspend, revoke, or place on probationary status any license issued under this chapter on proof that the licensee has failed to meet the applicable continuing education requirements. Applicants for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source:

S.L. 1993, ch. 420, § 5.

43-10-06.3. Information seminars.

The board may conduct information seminars.

Source:

S.L. 2009, ch. 360, § 1.

43-10-07. Records of board — Admissible evidence.

A transcript of any matter of record in the office of the board, with the certificate of the secretary thereof attached, under the seal of said board, is competent evidence of such matter of record in any court in this state.

Source:

S.L. 1905, ch. 111, § 6; R.C. 1905, § 345; C.L. 1913, § 545; R.C. 1943, § 43-1007.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-10-08. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1905, ch. 111, § 8; R.C. 1905, § 348; C.L. 1913, § 548; R.C. 1943, § 43-1008; S.L. 1963, ch. 346, § 40; 1973, ch. 403, § 30; 1975, ch. 466, § 32; 1989, ch. 513, § 7; 1995, ch. 350, § 31.

43-10-09. Use of fees — Funds kept by treasurer — How disbursed. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-10-10. License required.

A person may not practice funeral service in this state unless that person is licensed by the board or registered with the board as an intern embalmer.

Source:

S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1010; S.L. 1983, ch. 477, § 2; 1989, ch. 513, § 8; 1997, ch. 367, § 5.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

43-10-10.1. Funeral practice — Exceptions.

  1. Nothing in this chapter may be construed to prevent a person from doing work within the standards and ethics of that person’s profession and calling, provided that the person does not represent to the public that the person is engaging in the practice of funeral service.
  2. Nothing in this chapter may be construed to prevent embalming by commissioned medical officers in the armed forces of the United States or under the United States public health service while on active duty in a respective service.
  3. This chapter does not prevent the transportation of a dead human body in accordance with other applicable state and federal laws.
  4. This chapter does not prohibit ambulance or other emergency transportation of a dead human body.
  5. This chapter does not prohibit members of the clergy from performing funeral and gravesite or memorial services.
  6. This chapter does not prohibit individuals licensed in other states, as embalmers or funeral directors, from assisting funeral practitioners.
  7. This chapter does not prohibit individuals employed by a funeral establishment from performing nonprofessional tasks or activities that do not require independent, professional judgment under the supervision of an individual licensed to practice funeral service.

Source:

S.L. 1997, ch. 367, § 6; 2009, ch. 360, § 2.

43-10-11. Examination required — Application — Qualification.

Any person who desires a license to practice funeral service shall apply to the board on a form provided by the board and submit to an examination. The applicant shall submit with the application proof that the applicant has the following qualifications:

  1. Is of good moral character.
  2. Has such preliminary preparation and education as the rules of the board require.
  3. Has completed a twelve-month internship in accordance with rules adopted by the board.

Source:

S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1011; S.L. 1989, ch. 513, § 9; 1997, ch. 367, § 7.

43-10-11.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a funeral service practitioner or determines under section 12.1-33-02.1 that the person, following conviction of any offense, is not sufficiently rehabilitated.

Source:

S.L. 1977, ch. 130, § 25; 1989, ch. 513, § 10.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-10-12. Examinations — Subjects covered — Written — Record. [Effective through August 31, 2022]

The examination for a license to practice funeral service must be in writing and must cover the following subjects:

  1. Anatomy.
  2. Embalming.
  3. Bacteriology.
  4. Chemistry.
  5. Pathology.
  6. Mortuary management.
  7. Restorative arts.
  8. Rules of the state department of health and the board governing the practice of funeral service.
  9. Other subjects that may be required by the board.

All examination papers must be kept on record by the board for a period of not less than three years.

Source:

S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1012; S.L. 1949, ch. 288, § 1; 1957 Supp., § 43-1012; S.L. 1989, ch. 513, § 11; 1995, ch. 243, § 2; 1997, ch. 367, § 8.

43-10-12. Examinations — Subjects covered — Written — Record. [Effective September 1, 2022]

The examination for a license to practice funeral service must be in writing and must cover the following subjects:

  1. Anatomy.
  2. Embalming.
  3. Bacteriology.
  4. Chemistry.
  5. Pathology.
  6. Mortuary management.
  7. Restorative arts.
  8. Rules of the department of health and human services and the board governing the practice of funeral service.
  9. Other subjects that may be required by the board.

All examination papers must be kept on record by the board for a period of not less than three years.

Source:

S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1012; S.L. 1949, ch. 288, § 1; 1957 Supp., § 43-1012; S.L. 1989, ch. 513, § 11; 1995, ch. 243, § 2; 1997, ch. 367, § 8; 2021, ch. 352, § 356, effective September 1, 2022.

43-10-13. License — When granted — Fee — Signed by majority of board — Nontransferable — Where displayed.

The board shall grant a license to practice funeral service if the applicant:

  1. Has the required qualifications;
  2. Has passed the required examination; and
  3. Has paid to the treasurer of the board a sum of not more than two hundred dollars, as established by the board.

The license must be signed by a majority of the board, be attested by the board’s seal, and specify by name the person to whom it is issued. A license is nonassignable, nontransferable, and must be displayed where it can be observed by the public.

Source:

S.L. 1905, ch. 111, §§ 5, 6; R.C. 1905, §§ 344, 345; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 544, 545; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1013; S.L. 1979, ch. 462, § 2; 1989, ch. 513, § 12; 1993, ch. 420, § 1; 1997, ch. 367, § 9; 2009, ch. 360, § 3.

43-10-13.1. Limitations or qualifications placed on licensee.

The board, if the facts support such action, may place reasonable limitations or qualifications on the right to practice funeral service or to operate a funeral establishment or crematory.

Source:

S.L. 1997, ch. 367, § 11.

43-10-14. License by reciprocity.

A licenseholder in good standing in another jurisdiction that imposes requirements for licensure which are at least as stringent as the requirements of this state may be issued a license after passing a written examination on questions concerning laws and rules of this state, upon payment of a fee established by the board, and proof of good moral character.

Source:

S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1014; S.L. 1959, ch. 320, § 1; 1979, ch. 462, § 3; 1989, ch. 513, § 13; 1997, ch. 367, § 10; 2009, ch. 360, § 4.

43-10-15. License — Term — Renewal — Fee for renewal.

A license to practice funeral service is valid until the end of the year issued and may be renewed by the board upon the payment to the treasurer of the annual renewal fee before December thirty-first of each year. The amount of the fee may not exceed one hundred dollars. The board may refuse to renew a license for cause.

Source:

S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1015; S.L. 1959, ch. 320, § 2; 1979, ch. 462, § 4; 1989, ch. 513, § 14; 1993, ch. 420, § 2; 1997, ch. 367, § 12; 2009, ch. 360, § 5.

43-10-15.1. Late renewal.

A license that has been expired may be renewed at any time within two years after its expiration on filing an application for renewal on a form prescribed by the board and payment of the renewal fee in effect on the last regular renewal date. If the license is not renewed within thirty days after its expiration, the licensee shall pay a late fee determined by the board not to exceed one hundred fifty dollars. Renewal under this section is effected on the date on which the application is filed, on the date which the renewal fee is paid, or on the date on which the late fee, if any, is paid, whichever last occurs. A license that is not renewed within two years after its expiration may be renewed by filing an application for renewal on a form prescribed by the board, payment of the late fee, and passing the law and rules examination.

Source:

S.L. 1997, ch. 367, § 13; 2009, ch. 360, § 6.

43-10-15.2. Issuance of duplicate licenses.

Upon receipt of satisfactory evidence that a license or certificate has been lost, mutilated, or destroyed, the board may issue a duplicate license or certificate upon such terms and conditions as the board prescribes, and upon payment of a fee of ten dollars.

Source:

S.L. 1997, ch. 367, § 14.

43-10-15.3. Change of name.

Any licensee desiring to change the name appearing on the licensee’s license may do so by applying to the board and paying a fee of ten dollars.

Source:

S.L. 1997, ch. 367, § 15.

43-10-15.4. Intern embalmer — Application — Qualifications.

  1. The board shall issue a certificate of registration as an intern embalmer to each applicant who files an application upon a form and in a manner the board prescribes, accompanied by a fee not to exceed fifty dollars, and who furnishes sufficient evidence to the board that the applicant:
    1. Is at least eighteen years of age;
    2. Is of good moral character;
    3. Has completed an accredited four-year high school course of study;
    4. Has completed one year of accredited college or university studies; and
    5. Has been accepted to attend or is enrolled in an accredited college of mortuary science, or has graduated from an accredited college of mortuary science.
  2. An intern embalmer may not practice for more than six months before attending an accredited college of mortuary science.

Source:

S.L. 1997, ch. 367, § 16; 2017, ch. 92, § 23, effective August 1, 2017; 2019, ch. 346, § 1, effective March 14, 2019.

43-10-15.5. Certificate of registration — Term — Renewal — Fee for renewal.

A certificate of registration as an intern embalmer is valid for one year and may be renewed by the board upon payment to the treasurer of the annual renewal fee before December thirty-first of each year. Registration may not be renewed more than three times. The board may refuse to renew registration for cause.

Source:

S.L. 1997, ch. 367, § 17.

43-10-16. Grounds for disciplinary action — Reimbursement of costs.

The board may revoke, suspend, place on probation, or refuse to issue a license to practice funeral service or certificate of registration as an intern embalmer upon proof at a hearing that the applicant, licensee, or certificate holder:

  1. Is unfit to practice funeral service.
  2. Has violated this chapter or the rules of the board.

The board may impose a fee on any person or other legal entity subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, including the amount paid by the board for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses.

Source:

S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1016; S.L. 1983, ch. 477, § 3; 1989, ch. 513, § 15; 1997, ch. 367, § 18.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Civil liability of undertakers in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-16.1. Expiration of suspended license — Renewal.

A suspended license is subject to expiration and must be renewed as provided in this chapter, but the renewal does not entitle the holder of the license, while it remains suspended and until it is reinstated, to engage in the activity to which the license relates.

Source:

S.L. 1997, ch. 367, § 19.

43-10-16.2. Restoration of license after revocation.

One year from the date of revocation, the former licensee may make application for initial licensure. In order to receive a new license, the applicant must satisfy the current requirements for licensure.

Source:

S.L. 1997, ch. 367, § 21.

43-10-17. Revocation of license — When proceedings commenced — Hearing — Time. [Repealed]

Repealed by S.L. 1997, ch. 367, § 29.

43-10-18. Notice of hearing — Contents. [Repealed]

Repealed by S.L. 1997, ch. 367, § 29.

43-10-19. Hearing — Appeals.

Hearings regarding disciplinary action or denial of a license must be held under chapter 28-32. An appeal from the board’s final decision may be taken in accordance with the provisions of section 28-32-42.

Source:

S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1019; S.L. 1983, ch. 477, § 4; 1989, ch. 513, § 18; 1997, ch. 367, § 20; 2001, ch. 293, § 21.

43-10-20. Penalty.

A person practicing or representing that the person is practicing funeral service, or preparing the dead for burial or shipment in violation of this chapter, is guilty of a class B misdemeanor. In addition to the criminal penalty provided, the civil remedy of injunction is available to restrain and enjoin violations of any provision of this chapter without proof of actual damages sustained by any person and without the board being required to file an undertaking.

Source:

S.L. 1905, ch. 111, § 7; R.C. 1905, § 346; C.L. 1913, § 546; S.L. 1931, ch. 141, § 2; R.C. 1943, § 43-1020; S.L. 1975, ch. 106, § 476; 1989, ch. 513, § 19; 1997, ch. 367, § 22.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-21. Definition.

As used in sections 43-10-21 through 43-10-24, the term “funeral establishment” means a place of business situated at a specific street address or location, and used in the care and preparation for burial, transportation, or other disposition of dead human bodies, or used for the purpose of conducting funeral services.

Source:

S.L. 1963, ch. 305, § 1; 1993, ch. 420, § 3; 2017, ch. 92, § 24, effective August 1, 2017.

43-10-22. Licensure of funeral establishments.

A person may not operate or manage a funeral establishment without a funeral establishment license issued by the board for each place of business. Except for on tribal land, a funeral establishment may not be located on tax-exempt property. A person desiring to operate a funeral establishment shall submit an application for an annual license for each funeral establishment to the secretary or executive secretary of the board accompanied by a license fee for each establishment of not more than one hundred dollars, as established by the board. A person operating or managing a funeral establishment shall annually, on or before December first, submit an application for renewal of a license with a renewal fee of not more than one hundred twenty-five dollars, as established by the board. A license is valid until the following January first, unless sooner revoked. An application must show that the funeral establishment has complied with all rules adopted by the board in regard to safety and sanitation and will be under the supervision of an individual licensed to practice funeral service. An applicant who has met these standards must be issued a license. In case of the death of an owner of a funeral establishment who leaves an established business as part or all of an estate, the board may issue a special renewable temporary license to the personal representative of the deceased person for the duration of the administration of the estate, but which may not exceed two years. The fee for the temporary license is the same as required for regular licenses.

Source:

S.L. 1963, ch. 305, § 2; 1979, ch. 462, § 5; 1989, ch. 513, § 20; 1993, ch. 420, § 4; 1997, ch. 367, § 23; 2009, ch. 360, § 7.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Funeral home as private nuisance, 8 A.L.R.4th 324.

43-10-22.1. Display of license.

The funeral establishment license issued by the board to a funeral establishment must be conspicuously displayed at the funeral establishment for which the license was issued.

Source:

S.L. 1997, ch. 367, § 24.

43-10-23. Inspections — Hearings — Revocations — Appeal. [Effective through August 31, 2022]

The funeral establishment, or that part of a funeral establishment in which is conducted or intended to be conducted any funeral service business, must be open at all times for inspection by the board or the state department of health. The board or agents employed by it and the state department of health may make such inspections as are necessary of facilities and equipment of funeral establishments to ensure compliance with safety and sanitary rules adopted by the board or any other rules or federal regulations pertaining to funeral service whenever either deems the inspection advisable. The board may subpoena witnesses, administer oaths, and take testimony. All proceedings under this section must be conducted in accordance with chapter 28-32. The board may, after a hearing, revoke, suspend, or refuse to issue or renew a license upon good cause. A person aggrieved by the action of the board may appeal to the district court of the county in which the person resides or the district court of Burleigh County in accordance with chapter 28-32.

Source:

S.L. 1963, ch. 305, § 3; 1989, ch. 513, § 21; 1995, ch. 243, § 2; 1997, ch. 367, § 25; 2009, ch. 360, § 8.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-10-23. Inspections — Hearings — Revocations — Appeal. [Effective September 1, 2022]

The funeral establishment, or that part of a funeral establishment in which is conducted or intended to be conducted any funeral service business, must be open at all times for inspection by the board or the department of health and human services. The board or agents employed by it and the department of health and human services may make such inspections as are necessary of facilities and equipment of funeral establishments to ensure compliance with safety and sanitary rules adopted by the board or any other rules or federal regulations pertaining to funeral service whenever either deems the inspection advisable. The board may subpoena witnesses, administer oaths, and take testimony. All proceedings under this section must be conducted in accordance with chapter 28-32. The board may, after a hearing, revoke, suspend, or refuse to issue or renew a license upon good cause. A person aggrieved by the action of the board may appeal to the district court of the county in which the person resides or the district court of Burleigh County in accordance with chapter 28-32.

Source:

S.L. 1963, ch. 305, § 3; 1989, ch. 513, § 21; 1995, ch. 243, § 2; 1997, ch. 367, § 25; 2009, ch. 360, § 8; 2021, ch. 352, § 357, effective September 1, 2022.

43-10-24. Penalty.

Any person operating or managing a funeral establishment without a funeral establishment license in violation of section 43-10-22 is guilty of a class B misdemeanor.

Source:

S.L. 1963, ch. 305, § 4; 1975, ch. 106, § 477; 1997, ch. 367, § 26; 2009, ch. 359, § 3.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Civil liability of undertakers in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

43-10-25. Licensure of crematoriums.

A person may not operate a crematorium without a license issued by the board. A person desiring to operate a crematorium shall submit an application for an annual license to the board. The license fee may not exceed one hundred dollars and must be the same as a funeral establishment license.

Source:

S.L. 1989, ch. 513, § 22; 1997, ch. 367, § 27.

43-10-25.1. Grounds for disciplinary action.

The board may revoke, suspend, place on probation, or refuse to issue a license to operate a crematorium upon proof at a hearing that the applicant or licensee:

  1. Is unfit to operate a crematorium.
  2. Has violated this chapter or rules adopted by the board.

Source:

S.L. 1997, ch. 367, § 28.

43-10-26. Disposition of stored cremated remains.

Any cremated remains in the possession of a funeral home in this state that have not been claimed within twelve months after the time of cremation may be disposed of in accordance with this section and section 43-10-06.1. At least thirty days prior to such disposition, any funeral home wishing to dispose of such remains shall send a written notice to the last-known address of the responsible person who directed and provided for the method of final disposition of the human remains to the effect that such remains will be disposed of unless claimed by the person within thirty days from the date of mailing such notice. The notice must be sent by registered mail, return receipt requested.

Source:

S.L. 1989, ch. 514, § 1.

CHAPTER 43-10.1 Pre-Need Funeral Services

43-10.1-01. Definitions.

As used in this chapter:

  1. “Cemetery association” means any person owning, conducting, or maintaining a cemetery or plot for the burial of dead human bodies.
  2. “Cemetery merchandise” means all service or property to be used in funeral services or burials other than professional service or personal property to be used in funeral services.
  3. “Commissioner” means the securities commissioner.
  4. “Irrevocable itemized funeral contract” means an irrevocable pre-need funeral service contract that is an itemized listing of goods and services that will be received based on the contract.
  5. “Licensed funeral establishment” means a funeral establishment as defined and licensed in accordance with sections 43-10-21 and 43-10-22.
  6. “Pre-need funeral service contract” means any contract, other than an insurance contract, under which for a specified consideration paid in advance in a lump sum or by installments, a person promises, upon the death of a beneficiary named or implied in the contract, to furnish professional service or personal property to be used in funeral services, or to furnish cemetery merchandise.
  7. “Professional service or personal property to be used in funeral services” means all personal property, services, supplies, and equipment normally performed or furnished by a licensed embalmer, a licensed funeral establishment, or a cemetery association including any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, and all other articles of merchandise incident to a funeral service, but excluding any outside interment receptacles into which any inside receptacle or container will be placed, grave lots, grave spaces, grave markers, monuments, tombstones, crypts, niches, and mausoleums unless these items are sold by a companion agreement or in contemplation of a trade or barter which includes the sale or rental of any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, or other articles of merchandise incident to a funeral service.

Source:

S.L. 1967, ch. 348, § 1; 1973, ch. 348, § 1; 1981, ch. 440, §§ 2, 3; 1985, ch. 317, § 75; 1993, ch. 54, § 106; 2001, ch. 368, § 1; 2021, ch. 308, § 1, effective April 16, 2021.

Collateral References.

Validity of statutes regulating pre-need contracts for the sale or furnishing of burial services and merchandise, 68 A.L.R.2d 1251.

Construction and effect of contracts or insurance policies providing preneed coverage of burial expense or services, 67 A.L.R.4th 36.

43-10.1-02. Pre-need funeral service contracts.

A person may not engage in the sale or execution of a pre-need funeral service contract unless that person is the operator, agent, employee, or manager of a licensed funeral establishment or cemetery association. As part of the sale of a pre-need funeral service contract, the seller shall inform the purchaser of the extent to which the person with the duty of final disposition under section 23-06-03 might be bound by any pre-need funeral arrangements.

Source:

S.L. 1967, ch. 348, § 2; 1973, ch. 348, § 2; 2001, ch. 369, § 2; 2017, ch. 92, § 25, effective August 1, 2017.

Collateral References.

Construction and effect of contracts or insurance policies providing preneed coverage of burial expense or services, 67 A.L.R.4th 36.

43-10.1-03. Annual report filed with commissioner.

On or before January thirty-first of each year, the owner or manager of each cemetery association or licensed funeral establishment that has entered into any pre-need funeral service contracts during the preceding calendar year shall file a report covering the period of the preceding calendar year with the commissioner, which report must include:

  1. The name and address of the licensed funeral establishment or cemetery association and the name and address of the manager or operator thereof.
  2. The name of the purchaser and beneficiary of each pre-need funeral service contract entered into on behalf of the licensed funeral establishment or cemetery association during the preceding calendar year and the date each contract was made.
  3. The lump sum consideration paid upon such pre-need funeral service contract required to be reported under subsection 2 or the total amount in dollars of any installments paid upon each pre-need funeral service contract required to be reported under subsection 2.
  4. The name and address of the bank, credit union, savings and loan association, or trust company in which such consideration was deposited in accordance with section 43-10.1-03.1.
  5. The total in dollars of all sums received as consideration upon pre-need funeral service contracts executed by the licensed funeral establishment or cemetery association or in its behalf during all periods after July 1, 1973, which are undrawn or unexpended and on deposit in a bank, credit union, savings and loan association, or trust company or in the hands of the licensed funeral establishment or cemetery association.
  6. Such other information as may reasonably be required by the commissioner for the purpose of the proper administration of this chapter.

Such report must be accompanied by a filing fee of fifteen dollars and is a public record.

Source:

S.L. 1967, ch. 348, § 3; 1973, ch. 348, § 3; 1975, ch. 401, § 1; 1981, ch. 440, § 4; 1989, ch. 125, § 2; 1989, ch. 306, § 2; 2001, ch. 368, § 2.

Cross-References.

Commissioner of securities, see N.D.C.C. § 10-04-03.

43-10.1-03.1. Payments on pre-need funeral contracts to be deposited — Depository shall keep record of deposit — Personal property storage.

  1. If payments are made to a person upon pre-need funeral service contracts, including irrevocable itemized funeral contracts, one hundred percent of the funds collected under the contracts for the sale of professional service or personal property to be used in funeral services and fifty percent of the funds collected under the contracts for the sale of cemetery merchandise must be deposited in or transferred to a trust company in this state or to a federally insured bank, credit union, or savings and loan association in this state, within ten days. The deposit must be placed in a federal deposit insurance corporation or national credit union administration insured account or certificate of deposit or negotiable debt obligation of the United States government. Payments received from the sale of professional service or personal property to be used in funeral services or cemetery merchandise which cannot or would not be serviced by a licensed funeral establishment or cemetery association in the area in which the service or property was sold are specifically included, regardless of whether the sales might otherwise be considered pre-need funeral service contracts, within the payments to be deposited under this section. If payments have been made under an irrevocable itemized funeral contract, the money must be carried in a separate account or separate certificate of deposit with the names of the depositor or transferor, cemetery association or licensed funeral establishment, and the person making payment on behalf of the individual for whose benefit payment is made.
    1. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the depositor upon the death of the individual for whose benefit the funds were paid. A certified copy of the certificate of death must be furnished to the bank, credit union, savings and loan association, or trust company as prima facie evidence of death. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the person making the payment, before the death of the individual for whose benefit the funds are paid, upon a five-day written notice by registered or certified mail made by the bank, credit union, savings and loan association, or trust company to the depositor or transferor at the request of the person making the payment.
    2. A purchaser of a pre-need funeral service contract may make a certain amount of the pre-need funds irrevocable by designating an irrevocable amount to be used to pay for the funeral of the beneficiary. The irrevocable itemized funeral service contract to pay for a funeral is recognized as an allowable asset exclusion used for determining eligibility for medical assistance under section 50-24.1-02.3 at the time the contract is entered. A purchaser of an irrevocable itemized funeral contract has forty-five days from entering the contract to cancel the irrevocable part of the contract by giving notice to the cemetery association or licensed funeral establishment with which the contract was entered. Any pre-need funeral service contract held by a cemetery association or a licensed funeral establishment must be fully transferable to another cemetery association or funeral establishment licensed under chapter 43-10 or a substantially similar law of another jurisdiction which agrees to accept the obligations.
  2. A bank, credit union, savings and loan association, or trust company receiving such a deposit or transfer shall keep a complete record of the deposit or transfer, showing the name of the depositor or transferor, name of the person making payment, name of the individual for whose benefit payment is made, and any other pertinent information.
  3. Any personal property to be used in funeral services or cemetery merchandise which is sold to a purchaser on the basis it will be identified and marked as belonging to such purchaser, and stored or warehoused for the purchaser, must be stored or warehoused at some location within this state.

Source:

S.L. 2001, ch. 368, § 3; 2001, ch. 370, § 2; 2013, ch. 377, § 1; 2019, ch. 409, § 1, effective August 1, 2019; 2021, ch. 308, § 2, effective April 16, 2021.

43-10.1-04. Bond.

Each owner or operator of a licensed funeral establishment or cemetery association, who files an annual report, must file with the commissioner a corporate surety bond approved by the commissioner in an amount deemed adequate by the commissioner running to the state of North Dakota. The bond must be in such form and style as the commissioner may require for the use and benefit of the purchasers or persons making payments upon pre-need funeral service contracts or their estates, or the beneficiary of the pre-need funeral service contract or the beneficiary’s estate for damages suffered by them because of the failure to comply with all provisions of the pre-need funeral service contract or the provisions of this chapter.

Source:

S.L. 1967, ch. 348, § 4; 1973, ch. 348, § 4; 1975, ch. 401, § 2; 1989, ch. 306, § 3; 2001, ch. 368, § 4.

43-10.1-05. Verification by commissioner.

Within ninety days after the filing of a report as required by section 43-10.1-03, the commissioner shall verify the report by mailing to the banks, credit unions, savings and loan associations, or trust companies where the report indicates the consideration has been deposited, a questionnaire which the bank, credit union, savings and loan association, or trust company is requested to complete and return, verifying the facts stated in the report in regard to the contract or the deposit of funds. The commissioner shall verify the facts on additional contracts reported if the commissioner has reason to believe additional verification to be necessary.

Source:

S.L. 1967, ch. 348, § 5; 1975, ch. 401, § 3; 1989, ch. 306, § 4; 2001, ch. 368, § 5.

43-10.1-06. Special audits — Violations of law. [Repealed]

Repealed by S.L. 1979, ch. 463, § 7.

43-10.1-06.1. Fraudulent practices.

It is a fraudulent practice and it is unlawful:

  1. For any person knowingly to subscribe to, or make or cause to be made, any material false statement or representation in any report or other document or statement required to be filed under any provision of this chapter, or to omit to state any material statement or fact in any such document or statement which is necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
  2. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to employ any device, scheme, or artifice to defraud.
  3. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
  4. No action may be brought under this section by the commissioner after six years from the date of the violation.

Source:

S.L. 1979, ch. 463, § 2; 1995, ch. 100, § 8.

43-10.1-06.2. Orders and injunctions.

Whenever it appears to the commissioner either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act or practice or transaction which is prohibited by this chapter or by any order of the commissioner issued pursuant to any section of this chapter or which is declared to be illegal in this chapter, the commissioner may:

  1. Issue any order, including cease and desist, stop, and suspension orders, which the commissioner deems necessary or appropriate in the public interest or for the protection of purchasers. In addition to any other remedy authorized by this chapter, the commissioner may impose by order and collect a civil penalty in an amount not to exceed ten thousand dollars for each violation against any person found in an administrative action to have violated this chapter. The commissioner may bring an action in district court to recover penalties under this section. Any person aggrieved by an order issued under this subsection may request a hearing before the commissioner if the request is made, in writing, within ten days after receipt of the order. The hearing and any appeal therefrom must be held in accordance with chapter 28-32.
  2. Apply to the district court of any county in this state for an injunction restraining such person and the person’s agents, employees, partners, officers, and directors from continuing such act, practice, or transaction of engaging therein or doing any acts in furtherance thereof, and for such other and further relief as the facts may warrant. In any proceeding for an injunction, the commissioner may apply for and on due showing be entitled to have issued the court’s subpoena requiring the appearance forthwith of any defendant and the defendant’s agents, employees, partners, officers, or directors, and the production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction. Upon proof of any of the offenses described in this section, the court may grant such injunction as the facts may warrant. The court may not require the commissioner to post a bond.

Source:

S.L. 1979, ch. 463, § 3; 1995, ch. 100, § 9.

43-10.1-06.3. Investigations and subpoenas.

  1. The commissioner in the commissioner’s discretion:
    1. May make such public or private investigation within or outside this state as the commissioner deems necessary to determine whether any person has violated or is about to violate any provision of this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder.
    2. May require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all the facts and circumstances concerning the matter to be investigated.
    3. May publish information concerning any violation of this chapter or any rule or order hereunder.
  2. For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the commissioner deems relevant or material to the inquiry.
  3. In case of contumacy by, or refusal to obey a subpoena issued to, any person, the district court, upon application by the commissioner, may issue to the person an order requiring that person to appear before the commissioner, or the officer designated by the commissioner, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as a contempt of court.
  4. No person is excused from attending and testifying or from producing any document or record before the commissioner, or in obedience to the subpoena of the commissioner or any officer designated by the commissioner, or in any proceeding instituted by the commissioner, on the ground that the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate that person or subject that person to a penalty or forfeiture; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the individual is compelled, after claiming the privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.

Source:

S.L. 1979, ch. 463, § 4.

43-10.1-07. Prosecution for violations of law.

The commissioner may refer any evidence available concerning a violation of this chapter or of any rule or order issued under this chapter to the appropriate criminal prosecutor who, with or without the reference, may institute criminal proceedings under this chapter. The criminal prosecutor may apply for and on due showing be issued the court’s subpoena requiring the appearance forthwith of any defendant and the defendant’s agents, employees, partners, officers, and directors, and the production of any documents, books, and records necessary for the prosecution of the criminal proceedings.

Source:

S.L. 1967, ch. 348, § 7; 1973, ch. 348, § 6; 1975, ch. 401, § 5; 1979, ch. 463, § 5; 1995, ch. 100, § 10.

43-10.1-07.1. Administration.

The commissioner has the power to promulgate rules and regulations having the force and effect of law, reasonably necessary to carry out the provisions of this chapter, in accordance with chapter 28-32. Any hearing held and any orders issued pursuant to this chapter must be in accordance with chapter 28-32. In addition to those powers set forth in chapter 28-32, the commissioner has additional powers as set forth in this chapter.

Source:

S.L. 1979, ch. 463, § 1; 2001, ch. 368, § 6.

43-10.1-07.2. Statute of limitations.

No action may be brought under this chapter by the commissioner after five years from the date that the commissioner knew or reasonably should have known about the facts that are the basis for the alleged violation. This section does not apply to section 43-10.1-06.1.

Source:

S.L. 1995, ch. 100, § 12.

43-10.1-08. Penalties.

  1. Any person who willfully violates any provision of this chapter or any rule or order of the commissioner under this chapter is guilty of a class B felony.
  2. An information must be filed or an indictment must be found under this chapter within five years after the commissioner or criminal prosecutor knew or reasonably should have known about the facts that are the basis for the prosecution.
  3. “Willfully” means the person was aware of the consequences of the person’s actions, and proof of evil motive or intent to violate the law or knowledge that the law was being violated is not required. Each act or omission is a separate offense, and a prosecution or conviction for an offense does not bar a prosecution or conviction for any other offense.

Source:

S.L. 1967, ch. 348, § 9; 1975, ch. 401, § 6; 1979, ch. 463, § 6; 1995, ch. 100, § 11.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-11 Cosmetologists

43-11-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the state board of cosmetology.
  2. “Cosmetologist” means an individual licensed under this chapter to practice cosmetology.
  3. “Cosmetology” means any one or a combination of practices generally and usually performed by and known as the occupation of beauty culturists or cosmeticians or cosmetologists or hairdressers, or of any other individual holding out as practicing cosmetology by whatever designation and within the meaning under this chapter and in and upon whatever place or premises.
    1. The term includes:
      1. Hair care, including arranging, dressing, curling, waving, permanent waving, cleansing, cutting, shaving, trimming, singeing, bleaching, coloring, straightening, or similar work, upon the hair of any individual by any means or with hands or mechanical or electrical apparatus or appliances;
      2. Skin care;
      3. Manipulation and application of product to eyelashes and eyebrows, including extensions, design, treatment, tinting, and lightening;
      4. Hair extensions using chemical hair joint agents, such as synthetic tape, keratin bonds, or fusion bonds; and
      5. Manicuring.
    2. The term does not include natural hair braiding or threading.
  4. “Esthetician” means an individual licensed under this chapter to practice esthetics and skin care.
  5. “Esthetics” means manipulation and application of product to eyelashes and eyebrows, including extensions, design, treatment, tinting, and lightening and skin care.
  6. “Independent licensee” is a licensed individual who maintains a separate salon license and operates independently from the establishment owner in which the individual’s suite or chair is located.
  7. “Instructor” means an individual who is a licensed cosmetologist, esthetician, or manicurist who teaches cosmetology, esthetics, manicuring, or other practices within the scope of the individual’s license, in a duly registered school of cosmetology, and who has met the requirements of section 43-11-27 and has applied for and received an instructor’s license.
  8. “Invasive care” means any procedure that invades the live tissue of the dermis by any means, including cutting, puncturing, burning, insertion of instruments, and includes:
    1. Laser use; and
    2. Chemical peels using:
      1. Thirty percent or higher concentration of alpha hydroxy acid;
      2. Twenty percent or higher concentration of beta hydroxy acid;
      3. Two percent or higher concentration of resorcinol;
      4. Fifteen percent or higher concentration of trichloroacetic acid (TCA); or
      5. Fifteen percent or higher concentration of phenol.
  9. “Manicuring” means:
    1. Cleansing, cutting, shaping, or beautifying nails;
    2. Massaging from the elbow to the fingertips or knee to toes of any individual;
    3. Caring for and treating the cuticles and nails; and
    4. The application and removal of sculptured or otherwise artificial nails by hand or with mechanical or electrical apparatus or appliances.
  10. “Manicurist” means an individual licensed under this chapter to practice manicuring.
  11. “Master cosmetologist” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master cosmetologist license.
  12. “Master esthetician” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master esthetician license.
  13. “Master manicurist” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master manicuring license.
  14. “Mechanical device” means a clip, comb, crochet hook, curler, curling iron, hairpin, roller, scissors, blunt-tipped needle, thread, and hair binder.
  15. “Natural hair braiding” means the service of twisting, wrapping, weaving, extending, locking, or braiding hair by hand or with a mechanical device. Natural hair braiding is commonly known as “African-style hair braiding” but is not limited to any particular cultural, ethnic, racial, or religious forms of hairstyles.
    1. The term includes:
      1. The use of natural or synthetic hair extensions, natural or synthetic hair and fibers, and decorative beads and other hair accessories;
      2. Minor trimming of natural hair or hair extensions incidental to twisting, wrapping, weaving, extending, locking, or braiding hair;
      3. The making of wigs from natural hair, natural fibers, synthetic fibers, and hair extensions; and
      4. The use of topical agents, such as conditioners, gels, moisturizers, oils, pomades, and shampoos, in conjunction with performing services under paragraph 1 or 2.
    2. The term does not include:
      1. The application of dyes, reactive chemicals, or other preparations to alter the color of the hair or to straighten, curl, or alter the structure of the hair; or
      2. The use of chemical hair joining agents, such as synthetic tape, keratin bonds, or fusion bonds.
  16. “Noninvasive care” includes treatments confined to the nonliving cells of the stratum corneum of the epidermis. Noninvasive care must be in a superficial mode and not for the treatment of medical disorders, and living cells may not be altered, cut, or damaged.
  17. “Salon” means an establishment in a fixed location, not used as sleeping or living quarters, licensed under this chapter where cosmetology services are provided.
  18. “School of cosmetology” means an establishment operated for the purpose of teaching cosmetology.
  19. “Skin care” means the use of cosmetic preparations, antiseptics, tonics, lotions, creams, or otherwise, massaging, cleansing, stimulating, manipulating, performing noninvasive hair removal, including waxing and tweezing; beautifying, or similar noninvasive care and work on the body of any individual. The term does not include invasive care or threading.
  20. “Student” means any individual who is engaged in the learning or acquiring of any or all the practices of cosmetology and while so learning, performs or assists in any of the practices of cosmetology in any school registered or licensed and under the immediate supervision of an instructor licensed as such under this chapter.
  21. “Student instructor” means a cosmetologist, esthetician, or manicurist who is receiving instruction in teacher’s training within the scope of the individual’s license in a duly registered school of cosmetology.
  22. “Threading” means the method of removing hair from the eyebrows, upper lip, or other body part by using cotton thread to pull hair from follicles.
    1. The term may include the use of an over-the-counter astringent, gel, and powder, tweezers, and scissors, incidental to the removal of hair by threading.
    2. The term does not include the use of chemicals, heat, or any type of wax.
  23. “Tuition” means the total cost of an individual’s cosmetology studies, and does not include books or demonstration kits.

Source:

S.L. 1927, ch. 157, §§ 2, 3, 29; 1939, ch. 150, § 1; R.C. 1943, § 43-1101; S.L. 1947, ch. 297, § 1; 1957 Supp., § 43-1101; S.L. 1973, ch. 120, § 43; 1985, ch. 477, § 2; 1989, ch. 515, § 1; 1995, ch. 401, § 1; 1997, ch. 368, § 1; 2001, ch. 371, § 1; 2003, ch. 360, § 1; 2011, ch. 308, § 1; 2015, ch. 293, § 1, effective July 1, 2015; 2019, ch. 347, § 1, effective August 1, 2019; 2021, ch. 309, § 1, effective July 1, 2021.

Cross-References.

Barbers, see N.D.C.C. ch. 43-04.

Collateral References.

“Grandfather clause”, construction, 4 A.L.R.2d 667.

Regulation of beauty treatment by massage, 17 A.L.R.2d 1183.

Validity, construction, and effect of statute or ordinance regulating beauty shops, 56 A.L.R.2d 879.

Liability of cosmetology school for injury to patron, 81 A.L.R.4th 444.

43-11-02. Exemptions from provisions of chapter.

This chapter does not apply to:

  1. Services provided by individuals practicing cosmetology upon members of the individual’s immediate families.
  2. Services by nurses, undertakers, and morticians lawfully engaged in the performance of the usual and ordinary duties of their vocation.
  3. Educational activities conducted in connection with any regularly scheduled meeting or any educational activities of any bona fide association of licensed cosmetologists, estheticians, or manicurists from which the general public is excluded. For purposes of this subsection, a “bona fide association of cosmetologists” means any organization whose constitution, bylaws, or membership rules establish within said organization a class of membership consisting of licensed cosmetologists.
  4. Services provided by retailers or their sales personnel trained in the demonstration of cosmetics application if the cosmetics are applied only with disposable applicators that are discarded after each customer demonstration. The board may adopt rules to ensure sanitary conditions for services provided under this exemption.
  5. Services provided in a licensed hospital or a nursing home by a an individual practicing cosmetology on a volunteer basis without compensation or by a nurse’s assistant.
  6. Skin care provided by a licensed cosmetologist or esthetician outside of a licensed salon if the services are being provided under the supervision, control, and responsibility of a physician or physician assistant practicing within the scope of the physician’s or physician assistant’s license under chapter 43-17, or nurse practicing within the scope of the nurse’s license under chapter 43-12.1.

Source:

S.L. 1927, ch. 157, § 25; R.C. 1943, § 43-1102; S.L. 1963, ch. 306, § 1; 1971, ch. 432, § 1; 1985, ch. 477, § 3; 1989, ch. 516, § 1; 1995, ch. 402, § 1; 1997, ch. 368, § 2; 2011, ch. 308, § 2; 2015, ch. 293, § 2, effective July 1, 2015; 2021, ch. 309, § 2, effective July 1, 2021.

Cross-References.

Barbers, see N.D.C.C. ch. 43-04.

43-11-03. State board of cosmetology — Appointment — Term — Removal.

The state board of cosmetology consists of five members appointed by the governor for three years each, with their terms of office so arranged that no more than two terms expire on June thirtieth of each year. Each member shall qualify by taking the oath required of civil officers and shall hold office until a successor is appointed and qualified. The governor may remove from office a member for misconduct, malfeasance, neglect of duty in office, crime in office, gross incompetency, or habitual drunkenness. A vacancy on the board must be filled by appointment by the governor for the unexpired term.

Source:

S.L. 1927, ch. 157, § 5; R.C. 1943, § 43-1103; S.L. 1985, ch. 477, § 4; 1989, ch. 517, § 1; 2011, ch. 308, § 3.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-11-04. Members of board — Qualifications.

Each member of the board must be a citizen of this state. Three of the members of the board must each be a licensed cosmetologist who has had at least three years’ practical experience in the occupation. One member of the board must have professional experience as a secondary teacher or as a postsecondary educator. One member of the board must be a licensed health care provider.

Source:

S.L. 1927, ch. 157, § 5; R.C. 1943, § 43-1104; S.L. 1959, ch. 321, § 1; 1985, ch. 477, § 5; 2003, ch. 360, § 2; 2011, ch. 308, § 4; 2015, ch. 293, § 3, effective July 1, 2015.

43-11-05. Officers of board — Powers — Rulemaking.

The members of the board annually shall elect a president and a secretary from the members of the board. The president and the secretary may administer oaths. The board may adopt rules necessary to implement this chapter.

Source:

S.L. 1927, ch. 157, § 6; R.C. 1943, § 43-1105; S.L. 1985, ch. 477, § 6.

43-11-06. Compensation of members of board — How paid.

Each member of the board is entitled to receive compensation in the amount provided for members of the legislative management under section 54-35-10 for each day employed in the actual discharge of official duties, as determined by the board. Expenses incurred by a board member in the performance of an official function are payable by the board pursuant to sections 44-08-04 and 54-06-09. The compensation and expenses of all members of the board must be paid from the license fees and other sources of income of the board.

Source:

S.L. 1927, ch. 157, § 7; R.C. 1943, § 43-1106; S.L. 1947, ch. 297, § 2; 1957 Supp., § 43-1106; S.L. 1959, ch. 321, § 2; S.L. 1969, ch. 393, § 1; 1975, ch. 402, § 1; 1985, ch. 477, § 7; 2003, ch. 360, § 3; 2011, ch. 308, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-11-07. Bond of secretary.

Before entering upon the discharge of duties, the secretary of the board must be bonded for the faithful discharge of duties in the amount of five thousand dollars, and the premium for the bond must be paid out of the funds received by the board. The bond and oath of office must be deposited with the secretary of state.

Source:

S.L. 1927, ch. 157, § 8; R.C. 1943, § 43-1107; S.L. 1975, ch. 258, § 20; 1985, ch. 477, § 8.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14, and N.D.C.C. ch. 26.1-21.

43-11-08. Meetings of the board.

The board shall meet at least twice each year at times determined by the board. The board shall publish annually the time and place of its regularly scheduled meetings. A majority of the members constitutes a quorum.

Source:

S.L. 1927, ch. 157, § 9; R.C. 1943, § 43-1108; S.L. 1985, ch. 477, § 9; 1997, ch. 368, § 3.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-11-09. Fees — Deposited with state treasurer — Expenses — How paid. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-11-10. Records of board — Fees — Expenses — How paid.

The secretary of the board shall keep a record of the board’s proceedings and a register of applicants for licensure showing the name of the applicant, the name and location of the applicant’s place of occupation or business, and whether the applicant was granted or refused a license. The books and records of the board are prima facie evidence of matters therein contained and constitute public records. All fees and payments required to be paid by applicants for examinations or licenses must be deposited with the secretary of the board. The secretary shall pay all expenses incurred in the operation of maintaining an office for the purpose of carrying out this chapter from fees and other income.

Source:

S.L. 1927, ch. 157, § 10; R.C. 1943, § 43-1110; S.L. 1985, ch. 477, § 10.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-11-11. Rules of cleaning and disinfecting — Practice outside salon. [Effective through August 31, 2022]

The board with the approval of the state department of health shall adopt rules of cleaning and disinfecting necessary to prevent the creating and spreading of infectious and contagious diseases. A cosmetologist, esthetician, or manicurist may practice outside of a licensed salon under rules adopted by the board. The board shall inspect salons to assure compliance with the rules of cleaning and disinfecting.

Source:

S.L. 1927, ch. 157, § 20; R.C. 1943, § 43-1111; S.L. 1979, ch. 464, § 1; 1985, ch. 477, § 11; 1995, ch. 243, § 2; 1997, ch. 368, § 4; 2015, ch. 293, § 4, effective July 1, 2015; 2021, ch. 309, § 3, effective July 1, 2021.

Note.

Section 43-11-11 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 309, Session Laws 2021, Senate Bill 2092; and Section 358 of Chapter 352, Session Laws 2021, House Bill 1247.

43-11-11. Rules of cleaning and disinfecting — Practice outside salon. [Effective September 1, 2022]

The board with the approval of the department of health and human services shall adopt rules of cleaning and disinfecting necessary to prevent the creating and spreading of infectious and contagious diseases. A cosmetologist, esthetician, or manicurist may practice outside of a licensed salon under rules adopted by the board. The board shall inspect salons to assure compliance with the rules of cleaning and disinfecting.

Source:

S.L. 1927, ch. 157, § 20; R.C. 1943, § 43-1111; S.L. 1979, ch. 464, § 1; 1985, ch. 477, § 11; 1995, ch. 243, § 2; 1997, ch. 368, § 4; 2015, ch. 293, § 4, effective July 1, 2015; 2021, ch. 309, § 3, effective July 1, 2021; 2021, ch. 352, § 358, effective September 1, 2022.

43-11-11.1. Use of brush rollers authorized.

An individual licensed under this chapter may use brush rollers in the performance of cosmetology and hairdressing or hairsetting services if the rollers are cleaned and disinfected after each use in conformity with rules adopted by the board.

Source:

S.L. 1989, ch. 518, § 1; 2021, ch. 309, § 4, effective July 1, 2021.

43-11-12. Employees of board.

The board may employ support staff and other individuals knowledgeable in cosmetology for conducting examinations, inspections, and investigations of licensees regulated under this chapter. Any individual employed by the board is entitled to receive expenses in the amounts payable under sections 44-08-04 and 54-06-09.

Source:

S.L. 1927, ch. 157, § 16; R.C. 1943, § 43-1112; S.L. 1979, ch. 464, § 2; 1985, ch. 477, § 12; 1997, ch. 368, § 5; 2021, ch. 309, § 5, effective July 1, 2021.

Cross-References.

Compensation of board members, see N.D.C.C. § 43-11-06.

43-11-13. License required.

An individual may not:

  1. Advertise, engage in, or attempt to engage in the occupation of cosmetology, nor conduct a cosmetology salon or school of cosmetology unless having first obtained a license.
  2. Employ an unlicensed individual to perform cosmetology unless otherwise provided under this chapter.

Source:

S.L. 1927, ch. 157, § 1; R.C. 1943, § 43-1113; S.L. 1985, ch. 477, § 13; 2015, ch. 293, § 5, effective July 1, 2015; 2021, ch. 309, § 6, effective July 1, 2021.

43-11-13.1. License — Master esthetician and master manicurist. [Repealed]

Source:

S.L. 1995, ch. 401, § 4; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-13.2. Homebound license. [Repealed]

Source:

S.L. 1995, ch. 401, § 4; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-14. Licenses — Board to issue — Form — Displayed.

The board may issue all licenses provided for under this chapter. Each license issued must be:

  1. Signed by the secretary of the board;
  2. Attested by the seal of the board; and
  3. Displayed in clear view to the public where services are being provided .

Source:

S.L. 1927, ch. 157, § 15; 1939, ch. 150, § 4; R.C. 1943, § 43-1114; S.L. 1985, ch. 477, § 14; 2021, ch. 309, § 7, effective July 1, 2021.

43-11-15. Salon ownership and operation.

  1. A salon may be owned by any person authorized to do business in this state.
    1. A cosmetology salon must be supervised by a master cosmetologist.
    2. A salon providing only skin care or esthetics must be supervised by a master cosmetologist or master esthetician.
    3. A manicuring salon must be supervised by a master cosmetologist or master manicurist.
  2. The board shall determine the qualifications by rule for licensure and license fees for a salon license.

Source:

S.L. 1927, ch. 157, § 3; 1939, ch. 150, § 1, subs. e; R.C. 1943, § 43-1115; S.L. 1985, ch. 477, § 15; 2015, ch. 293, § 6, effective July 1, 2015; 2021, ch. 309, § 8, effective July 1, 2021.

43-11-16. Schools of cosmetology — Qualifications for licensure.

  1. A license must be granted to a school of cosmetology upon an application to the board and the payment of the license fee if the school:
    1. Is operated and maintained in premises separate from any cosmetology salon;
    2. Requires a minimum of one thousand five hundred hours of training and instruction in cosmetology, six hundred hours of training and instruction in esthetics, or three hundred fifty hours of training and instruction in manicuring, not to exceed eight hours per day;
    3. Employs at least two full-time licensed instructors and maintains a maximum student-to-instructor ratio of twenty-four-to-one based on current enrollment, except a school that provides training and instruction limited to esthetics or manicuring shall maintain a maximum student-to-instructor ratio of twelve-to-one based on current enrollment;
    4. Possesses apparatus and equipment sufficient for the proper and full teaching of all subjects of its curriculum;
    5. Maintains a record of the attendance and performance of each student;
    6. Maintains regular class and instruction hours to include practical demonstrations and theoretical studies supplemented by audiovisual aids, and studies in sanitation, sterilization, and other safety measures and the use of antiseptics, cosmetics, and electrical appliances consistent with the practical and theoretical requirements as applicable to cosmetology;
    7. Agrees not to:
      1. Permit any student to practice on any individual who is not an instructor or registered student of the school until the student has completed at least twenty percent of the total hours of instruction required under this chapter and only if the practice is under the immediate direction and supervision of a licensed instructor; or
      2. Compensate any of the school’s basic students in any way; and
    8. At the time of application for licensure and upon the renewal of a license, furnishes to the board, and maintains in force at all times the license is in effect, a bond in the penal sum of ten thousand dollars. The bond must run in favor of the board, as agent of the state, and must be furnished by a surety company authorized to do business in this state. It must be conditioned upon the bonded school’s providing its registered students with the full course of instruction required under this chapter and must provide for a refund of a proportionate amount of each student’s tuition fee upon default.
  2. Any school that enrolls student instructors shall set up an adequate course of training with the approval of the board and may not have at any one time more than two student instructors for each licensed instructor actively engaged in the school.

Source:

S.L. 1927, ch. 157, § 4, subs. b; 1937, ch. 137, § 1, subs. b; 1939, ch. 150, § 2, subs. b; R.C. 1943, § 43-1116; S.L. 1947, ch. 297, § 3; 1957 Supp., § 43-1116; S.L. 1963, ch. 306, § 2; 1969, ch. 393, § 2; 1973, ch. 349, § 1; 1975, ch. 402, § 3; 1979, ch. 464, § 3; 1981, ch. 435, § 7; 1985, ch. 477, § 16; 2001, ch. 371, § 2; 2003, ch. 360, § 4; 2011, ch. 308, § 6; 2021, ch. 309, § 9, effective July 1, 2021.

Cross-References.

Exemption of schools for hairdressers and cosmetologists from regulations governing postsecondary educational institutions, see N.D.C.C. § 15-20.4-02.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

43-11-16.1. Internships and apprenticeship programs.

The board may establish internships with the schools of cosmetology and may establish apprenticeship programs. The board may adopt rules related to the licensure and discipline of interns and apprentices practicing in programs established under this section.

Source:

S.L. 2021, ch. 309, § 10, effective July 1, 2021.

43-11-17. Licenses issued for schools of cosmetology and cosmetology salons — Fee for registration.

The board shall issue, after inspection and approval, a license for a school of cosmetology. The registration fee for a school must be determined by the board as set forth in section 43-11-28. The board shall issue, after inspection and approval, a salon license, the fee for which must be determined by the board as set forth in section 43-11-28.

Source:

S.L. 1927, ch. 157, § 4, subs. a; 1937, ch. 137, § 1, subs. a; 1939, ch. 150, § 2, subs. a; R.C. 1943, § 43-1117; S.L. 1947, ch. 297, § 4; 1957 Supp., § 43-1117; S.L. 1959, ch. 321, § 3; 1975, ch. 403, § 1; 1979, ch. 464, § 4; 1985, ch. 477, § 17; 1997, ch. 368, § 6; 2021, ch. 309, § 11, effective July 1, 2021.

43-11-18. School advertising must disclose work done by students — Violation — Cancellation of license.

No person, firm, corporation, or limited liability company operating or conducting a school of cosmetology may advertise to perform any of the practices of cosmetology without disclosing that the practice offered is to be performed by students under the supervision of a licensed instructor. If any school violates this section, the board, after notice and hearing and a determination of the violation, shall cancel the license granted to the school.

Source:

S.L. 1937, ch. 137, § 1, subs. e; 1939, ch. 150, § 2, subs. e; R.C. 1943, § 43-1118; S.L. 1985, ch. 477, § 18; 1993, ch. 54, § 106.

43-11-19. Students — Registration.

  1. A student must:
    1. Adhere to the laws and rules regarding the practice of cosmetology;
    2. Have educational qualifications equivalent to completion of four years of high school; and
    3. Have enrolled in a school of cosmetology and complied with the preliminary requirements thereof.
  2. The names and qualifications of all students must be certified to the board by each school of cosmetology. The certification must be accompanied by a processing fee for each student in an amount as may be determined by the board under section 43-11-28.

Source:

S.L. 1927, ch. 157, § 12, subs. a; 1939, ch. 150, § 3, subs. a; R.C. 1943, § 43-1119; S.L. 1947, ch. 297, § 5; 1957 Supp., § 43-1119; S.L. 1963, ch. 306, § 3; 1979, ch. 464, § 5; 1985, ch. 477, § 19; 1987, ch. 514, § 1; 1997, ch. 368, § 7; 2021, ch. 309, § 12, effective July 1, 2021.

43-11-20. Student practice. [Repealed]

Source:

S.L. 1927, ch. 157, § 3, subs. a; 1939, ch. 150, § 1, subs. a; R.C. 1943, § 43-1120; S.L. 1985, ch. 477, § 20; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-20.1. Refund of student tuition fees upon cancellation of course.

Schools of cosmetology shall refund tuition and other charges paid by or on behalf of a student when written notice of cancellation is given by the student. Refunds must be made in accordance with the following schedule:

Tuition Hours Retained Enrolled By School 0.0% - 4.9% 20% 5% - 9.9% 30% 10% - 14.9% 40% 15% - 24.9% 45% 25% - 49.9% 70% Over 50% 100%

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Notice of this section and of sections 43-11-20.2 and 43-11-20.3 must be posted in clear view to the public where services are being provided in each school of cosmetology. The notice must be in a form and contain information as prescribed by the board. The board shall take action necessary to enforce this section and sections 43-11-20.2 and 43-11-20.3, including revocation of the license issued pursuant to section 43-11-17. This section does not prejudice the right of any student to commence a civil action against any school of cosmetology for breach of contract or fraud.

Source:

S.L. 1971, ch. 433, § 1; 1979, ch. 464, § 6; 1985, ch. 477, § 21; 1997, ch. 368, § 8; 2021, ch. 309, § 13, effective July 1, 2021.

43-11-20.2. Negotiation of promissory instruments.

No school of cosmetology may negotiate any promissory instrument received as payment for tuition or other charges prior to the completion of one-half of the course of instruction offered by the school.

Source:

S.L. 1971, ch. 433, § 2; 1985, ch. 477, § 22.

43-11-20.3. Cancellation of contract for instruction.

Any person has the unrestricted right to rescind, revoke, or cancel a contract for a course of instruction at any school of cosmetology after entering into the contract without incurring any tort or contract liability.

Source:

S.L. 1971, ch. 433, § 3; 1985, ch. 477, § 23.

43-11-20.4. Exemption from postsecondary license requirement — Solicitor’s permit required.

Schools of cosmetology are exempt from the license requirement of chapter 15-20.4. All individuals who solicit business for a school of cosmetology or who sell any course of instruction shall secure a solicitor’s permit and bond in an amount and under conditions as established by the board.

Source:

S.L. 1971, ch. 433, § 4; 1981, ch. 91, § 40; 1985, ch. 477, § 24; 2021, ch. 309, § 14, effective July 1, 2021.

43-11-21. Cosmetologist, esthetician, manicurist license — Examination required — Application — Examination — Fees.

Each individual who desires to secure a cosmetologist, esthetician, or manicurist license shall file with the board a written application under oath on a form supplied by the board. The application must be accompanied by all of the following:

  1. An examination fee as may be fixed by the board pursuant to section 43-11-28.
  2. Satisfactory proof that the applicant has completed the required training in a school of cosmetology.
  3. A fee for original licensure as required by section 43-11-28.

Source:

S.L. 1927, ch. 157, §§ 11, 12, subs. b, 13; 1939, ch. 150, § 3, subs. b; R.C. 1943, § 43-1121; S.L. 1947, ch. 297, § 6; 1957 Supp., § 43-1121; S.L. 1959, ch. 321, § 4; 1963, ch. 306, § 4; 1979, ch. 464, § 7; 1985, ch. 477, § 25; 1995, ch. 401, § 2; 1997, ch. 368, § 9; 2011, ch. 308, § 7; 2017, ch. 304, § 1, effective August 1, 2017; 2021, ch. 309, § 15, effective July 1, 2021.

43-11-22. Board to determine qualifications of applicants — Delegation of power.

The qualifications of applicants for admission to examination for registration and for certification or licensure to practice under this chapter must be determined by the board. The board may delegate authority under this section to support staff.

Source:

S.L. 1927, ch. 157, § 12, subs. d; 1939, ch. 150, § 3, subs. e; R.C. 1943, § 43-1122; S.L. 1985, ch. 477, § 26; 2021, ch. 309, § 16, effective July 1, 2021.

43-11-23. Examination.

The examination of applicants for license to practice under this chapter must be conducted under rules adopted by the board and must include both practical demonstrations and written or oral tests in reference to the practices for which a license is desired and in reference to related studies or subjects as the board may determine necessary for the proper and efficient performance of a practice. The board may require the practical portion of the examination be conducted by schools of cosmetology as part of graduation requirements. The examination may not be confined to any specific system or method and must be consistent with the practical and theoretical requirements of cosmetology.

Source:

S.L. 1927, ch. 157, § 14; R.C. 1943, § 43-1123; S.L. 1985, ch. 477, § 27; 1997, ch. 368, § 10; 2021, ch. 309, § 17, effective July 1, 2021.

43-11-24. Cosmetologist, esthetician, or manicurist license — When issued — Failure to pass examination — Re-examination.

  1. A cosmetologist, esthetician, or manicurist license must be issued to any individual who has met all the following requirements:
    1. Complied with section 43-11-21.
    2. Passed to the satisfaction of the board the examination of applicants for a license to practice under this chapter.
  2. If the applicant fails to pass the examination, the examination fee may not be returned. If an applicant fails to pass an examination, the applicant may be examined again with the payment of a re-examination fee as set forth in section 43-11-28.

Source:

S.L. 1927, ch. 157, §§ 15, 23; 1939, ch. 150, § 4; R.C. 1943, § 43-1124; S.L. 1979, ch. 464, § 8; 1985, ch. 477, § 28; 1997, ch. 368, § 11; 2003, ch. 360, § 5; 2011, ch. 308, § 8; 2021, ch. 309, § 18, effective July 1, 2021.

43-11-25. Licensure by reciprocity.

The board may grant licenses under this chapter upon the payment of a fee for original licensure and the reciprocity fee if the following requirements are met:

  1. The applicant has:
    1. Provided satisfactory proof of a license in good standing with the District of Columbia, or any other state, territory, foreign country, or province where the requirements are equally substantial to those in force in this state at the time the application for the license is filed; or
    2. Provided satisfactory proof:
      1. The applicant is licensed in good standing in any other state, territory, or jurisdiction of the United States to practice cosmetology;
      2. The applicant worked in the licensed profession for at least three of the past five years; and
      3. A license granted to the applicant in any other state, territory, or jurisdiction of the United States is not subject to suspension or revocation, or otherwise restricted in any manner for disciplinary purposes.
  2. The applicant passes to the satisfaction of the board an examination on North Dakota laws, rules, and regulations.

Source:

S.L. 1927, ch. 157, § 17; R.C. 1943, § 43-1125; S.L. 1973, ch. 349, § 2; 1979, ch. 464, § 9; 1985, ch. 477, § 29; 2011, ch. 308, § 9; 2015, ch. 293, § 7, effective July 1, 2015; 2017, ch. 304, § 2, effective August 1, 2017; 2021, ch. 309, § 19, effective July 1, 2021.

43-11-25.1. International applicants.

  1. An applicant with training and credentials outside of the United States shall submit, at the applicant’s own expense, qualifications, credentials, and work experience for review to a credentialing agency approved by the board.
  2. Failure to have a review completed by the above credentialing agency may result in the board denying the application. The board may accept or refuse any recommendations made by the credentialing agency.

Source:

S.L. 2021, ch. 309, § 20, effective July 1, 2021.

43-11-26. Master cosmetologist, master esthetician, and master manicurist — License — Qualifications.

An individual may obtain a master cosmetologist, master esthetician, or master manicurist license upon meeting all the following requirements:

  1. Furnishing to the board evidence of having practiced as a cosmetologist, esthetician, or manicurist for at least one thousand hours. Cosmetologists may obtain hours under the direction and control of a master cosmetologist. Estheticians may obtain hours under the direction and control of a master cosmetologist or master esthetician. Manicurists may obtain hours under the direction and control of a master cosmetologist or master manicurist. Cosmetologists and estheticians may obtain a master license under the direction, control, and responsibility of a physician or physician assistant practicing within the scope of licensure under chapter 43-17 or a nurse practicing within the scope of the nurse’s license under chapter 43-12.1.
  2. Paying an original licensure fee as set forth in section 43-11-28.
  3. Complying with the other requirements under this chapter applicable to a master license.

Source:

S.L. 1939, ch. 150, § 3, subs. d; R.C. 1943, § 43-1126; S.L. 1947, ch. 297, § 7; 1957 Supp., § 43-1126; S.L. 1973, ch. 349, § 3; 1979, ch. 464, § 10; 1985, ch. 477, § 30; 1995, ch. 401, § 3; 1997, ch. 368, § 12; 2011, ch. 308, § 10; 2015, ch. 293, § 8, effective July 1, 2015; 2021, ch. 309, § 21, effective July 1, 2021.

43-11-27. Instructor’s license — Student instructor’s license — Registration — Qualifications.

  1. No individual may be licensed as an instructor of cosmetology unless the individual passes a theory and a practical examination required by the board after paying the examination fee set forth in section 43-11-28 and provides evidence of having a general education equivalent to the completion of four years in high school. An applicant:
    1. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and must have at least nine hundred sixty hours instructor’s training in cosmetology in a school of cosmetology;
    2. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and must have been actively engaged in the practice under the scope of the applicant’s license for at least one year before application for an instructor’s license, supplemented by not less than four hundred eighty hours instructor’s training in a school of cosmetology or course of training approved by the board; or
    3. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and shall have been actively engaged in the practice of cosmetology for at least three years prior to application for an instructor’s license supplemented by not less than one hundred sixty hours instructor’s training in a school of cosmetology or course of training approved by the board. No instructor or student instructor may be permitted to practice cosmetology on a patron other than that part of practical work which pertains directly to the teaching of practical operations to students.
  2. Student instructors must be registered with the board. The board must record the name, age, and qualifications of the student instructor in a register. A student instructor shall possess, at the time of enrollment, a general education equivalent to the completion of four years in high school and hold a license as a cosmetologist. Upon completion of the course prescribed for student instructors, the student instructor shall make application on a form provided by the board and pay a fee as provided in section 43-11-28. The board then shall cause the applicant to be examined for an instructor’s license. The examination must be given by a special examining committee comprised of the board, assisted by one person designated by the board. Upon successfully passing the examination, the board shall issue an instructor’s license to the applicant.
  3. No individual is entitled to renew an instructor’s license unless the instructor has furnished to the board evidence of completion of the continuing education established by the board by rule.
  4. Licensed estheticians and manicurists may only provide instruction within the scope of practice of the respective licenses determined under this chapter.

Source:

S.L. 1927, ch. 157, § 12, subs. c; 1939, ch. 150, § 3, subs. c; R.C. 1943, § 43-1127; S.L. 1947, ch. 297, § 8; 1957 Supp., § 43-1127; S.L. 1963, ch. 306, § 5; 1973, ch. 120, § 44; 1973, ch. 349, §§ 4, 5; 1979, ch. 464, § 11; 1985, ch. 477, § 31; 1987, ch. 514, § 2; 1997, ch. 368, § 13; 2001, ch. 371, § 3; 2003, ch. 360, § 6; 2015, ch. 293, § 9, effective July 1, 2015; 2021, ch. 309, § 22, effective July 1, 2021.

43-11-27.1. Esthetician and manicurist licenses — Qualifications — Fees.

The board may issue licenses for estheticians and manicurists. The board shall determine the qualifications for licensure and license fees for estheticians and manicurists.

Source:

S.L. 1989, ch. 515, § 2; 2021, ch. 309, § 23, effective July 1, 2021.

43-11-28. Fees.

  1. Fees to be paid by applicants for original registrations, original licenses, renewals, licenses issued upon reciprocity, and examinations as required under this chapter may not exceed the following amounts:
    1. Original registrations, licenses, and annual renewals: MAXIMUM FEE: (1) Salons, original registration $80.00 per year (2) Salons, renewal $30.00 per year (3) School of cosmetology, original registration $505.00 per year (4) School of cosmetology, annual renewal $205.00 per year (5) Cosmetologist, original license $15.00 per year (6) Cosmetologist, annual renewal $15.00 per year (7) Master cosmetologist, original license $25.00 per year (8) Master cosmetologist, annual renewal $20.00 per year (9) Instructor, original license $35.00 per year (10) Instructor, renewal $20.00 per year (11) Reciprocity license fee $105.00 per year (12) Registration fee for student $15.00 per year (13) Duplicate license $10.00 per year (14) Certification fee $20.00 per year b. Late fees: (1) Late renewal within one year $50.00 (2) Late renewal after one year but before five years $150.00 c. Examinations: (1) Cosmetology practical examination $25.00 (2) Instructors practical examination $55.00 (3) Written examination fees are set and collected by the administrator of the examination and payment is the responsibility of the applicant.
  2. Fees are not prorated or returnable.
  3. The board shall sponsor an educational program for licenseholders to carry out the purposes of protecting the public health and safety and maintaining capable and skilled cosmetologists, estheticians, manicurists, and instructors. The board shall use such portion of the renewal fees as the board may determine for the purpose of providing the educational program.

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Source:

S.L. 1927, ch. 157, §§ 26, 27; 1939, ch. 150, §§ 5, 6; R.C. 1943, § 43-1128; S.L. 1979, ch. 464, § 12; 1985, ch. 477, § 32; 1995, ch. 401, § 5; 1997, ch. 368, § 14; 2003, ch. 360, § 7; 2011, ch. 308, § 11; 2015, ch. 293, § 10, effective July 1, 2015; 2021, ch. 309, § 24, effective July 1, 2021.

43-11-29. License renewal — Failure to renew.

  1. A license issued by the board expires on December thirty-first. If the application for renewal is not received on or before the expiration date, the license expires.
  2. The board may renew a license if:
    1. An application for renewal is submitted as provided by the board;
    2. The renewal fee is paid; and
    3. Grounds for denial do not exist under section 43-11-31.
  3. The holder of an expired license, within one year from and after the date of the license’s expiration, may obtain a reinstatement of the license upon:
    1. Payment of the required late fee; and
    2. Payment of the current renewal fee.
  4. The holder of an expired license, one year after the date of expiration but before five years, may obtain a reinstatement of the license upon:
    1. Payment of the required late fee; and
    2. Furnishing to the board satisfactory proof of passing the North Dakota law, rules, and regulations examination.
  5. The board may not reinstate a license if more than five years has lapsed since the license expired. If a license has not been renewed within five years, the individual may reapply for licensure under the requirements of initial licensure as set forth under this chapter.

Source:

S.L. 1927, ch. 157, § 26; 1939, ch. 150, § 5; R.C. 1943, § 43-1129; S.L. 1985, ch. 477, § 33; 2021, ch. 309, § 25, effective July 1, 2021.

43-11-30. Revocation or suspension of license.

The board may place on probation, revoke, or suspend a license upon proof of a violation under this chapter or a rule adopted by the board.

Source:

S.L. 1927, ch. 157, § 19, subs. 1; 1943, ch. 144, § 1, subs. 1; R.C. 1943, § 43-1130; S.L. 1979, ch. 464, § 13; 1985, ch. 477, § 34; 2021, ch. 309, § 26, effective July 1, 2021.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-11-31. License — Refusal to grant — Grounds.

The board may deny an application or discipline a licensee on any of the following grounds:

  1. Fraud in passing the examination.
  2. Conviction of an offense determined by the board to have a direct bearing upon an individual’s ability to serve the public in a profession licensed by the board, or, following conviction of any offense, the board determines the individual is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. Grossly unprofessional or dishonest conduct.
  4. Addiction to the use of intoxicating liquor or drugs to such an extent as to render the individual unfit to practice.
  5. Advertising by means of knowingly false or deceptive statements.
  6. Failure to display the license as provided under this chapter.
  7. Violation of the provisions under this chapter or the rules adopted by the board.
  8. Permitting an unlicensed individual to practice cosmetology, or teaching in a cosmetology salon or school of cosmetology.
  9. Advertising or providing services outside of the licensee’s scope of practice as defined under this chapter.

Source:

S.L. 1927, ch. 157, § 19, subs. 2; 1943, ch. 144, § 1, subs. 2; R.C. 1943, § 43-1131; S.L. 1977, ch. 130, § 26; 1979, ch. 464, § 14; 1985, ch. 477, § 35; 2011, ch. 308, § 12; 2021, ch. 309, § 27, effective July 1, 2021.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-11-32. Hearings.

All hearings must be conducted pursuant to chapter 28-32. For purposes of a hearing, section 28-32-21 applies only to the licensee.

Source:

S.L. 1927, ch. 157, § 21; R.C. 1943, § 43-1132; 1997, ch. 368, § 15; 2001, ch. 293, § 22.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-11-33. Board may subpoena witnesses — Fees — How paid.

The board may require the attendance of witnesses and the production of books, records, and papers at any hearing or with reference to any matter which the board has authority to investigate and, for that purpose, may issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers. The fees and mileage of witnesses must be the same as may be allowed in the court in criminal cases. Fees and mileage must be paid in the same manner as expenses of the board.

Source:

S.L. 1927, ch. 157, § 19, subs. 3; 1943, ch. 144, § 1, subs. 3; R.C. 1943, § 43-1133; S.L. 1985, ch. 477, § 36; 1997, ch. 368, § 16; 2021, ch. 309, § 28, effective July 1, 2021.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Compensation of board members, see N.D.C.C. § 43-11-06.

Sheriff’s fee for service of subpoena, see N.D.C.C. § 11-15-07.

Subpoenas, see ch. 31-03; N.D.R.Civ.P. 45; N.D.R.Crim.P. 17.

Witnesses fee in criminal cases, see N.D.C.C. § 31-01-16.

43-11-34. Appeal from actions of the board.

An appeal may be taken from an action of the board under this chapter in refusing to grant or in suspending or revoking a license to the district court of the county of residence of the individual who has been refused a license or whose license has been suspended or revoked. The appeal must be taken in accordance with the provisions under chapter 28-32.

Source:

S.L. 1927, ch. 157, § 22; R.C. 1943, § 43-1134; S.L. 1985, ch. 477, § 37; 1997, ch. 368, § 17; 2021, ch. 309, § 29, effective July 1, 2021.

43-11-35. Penalty.

Any individual who without a license as required under this chapter willfully practices any of the occupations, maintains a school, or acts or advertises in any capacity violates this chapter or rule adopted by the board, is guilty of a class B misdemeanor.

Source:

S.L. 1927, ch. 157, § 28; 1937, ch. 137, § 2; R.C. 1943, § 43-1135; S.L. 1975, ch. 402, § 2; 1985, ch. 477, § 38; 1997, ch. 368, § 18; 2021, ch. 309, § 30, effective July 1, 2021.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-11-36. Minimum fees may be established — Conditions — How. [Repealed]

Repealed by S.L. 1981, ch. 435, § 26.

CHAPTER 43-12 Nurse Scholarships and Loans [Repealed]

[Repealed by S.L. 1963, ch. 307, § 18; S.L. 1971, ch. 434, § 20; S.L. 1977, ch. 400, § 4; S.L. 1987, ch. 515, § 4; S.L. 1989, ch. 410, § 4; S.L. 1995, ch. 403, § 17]

CHAPTER 43-12.1 Nurse Practices Act

43-12.1-01. Scope.

The practice of nursing is continually evolving and responding to changes within health care patterns and systems. There are overlapping functions within the practice of nursing and other providers of health care.

Source:

S.L. 1977, ch. 400, § 1; 1991, ch. 453, § 1; 1995, ch. 403, § 2; 2003, ch. 361, § 1.

Notes to Decisions

In General.

Although the standards set forth in this chapter are broad, they are sufficient when considered with the safeguards, which prevent the board from engaging in arbitrary rule making. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

This section, and sections 43-12.1-02 and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Collateral References.

Nurse’s liability for her own negligence or malpractice, 51 A.L.R.2d 970.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

Admissibility of Expert Testimony by Nurses, 24 A.L.R.6th 549.

Collateral References.

Nurse’s liability for her own negligence or malpractice, 51 A.L.R.2d 970.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

Admissibility of Expert Testimony by Nurses, 24 A.L.R.6th 549.

43-12.1-02. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Advanced practice registered nurse” means an individual who holds a current license to practice in this state as an advanced practice registered nurse within one of the roles of certified nurse practitioner, certified registered nurse anesthetist, certified nurse midwife, or certified clinical nurse specialist, and who functions in one of the population foci as approved by the board.
  2. “Board” means the North Dakota board of nursing.
  3. “Licensed practical nurse” means an individual who holds a current license to practice in this state as a licensed practical nurse and who practices dependently under the supervision of a registered nurse, specialty practice registered nurse, advanced practice registered nurse, or licensed practitioner.
  4. “Nurse” means an individual who is currently licensed as an advanced practice registered nurse, specialty practice registered nurse, registered nurse, or licensed practical nurse.
  5. “Nursing” means the performance of acts utilizing specialized knowledge, skills, and abilities for people in a variety of settings. The term includes the following acts, which may not be deemed to include acts of medical diagnosis or treatment or the practice of medicine as defined in chapter 43-17:
    1. The maintenance of health and prevention of illness.
    2. Assessing and diagnosing human responses to actual or potential health problems.
    3. Providing supportive and restorative care and nursing treatment, medication administration, health counseling and teaching, case finding and referral of individuals who are ill, injured, or experiencing changes in the normal health processes.
    4. Administration, teaching, supervision, delegation, and evaluation of health and nursing practices.
    5. Collaboration with other health care professionals in the implementation of the total health care regimen and execution of the health care regimen prescribed by a health care practitioner licensed under the laws of this state.
  6. “Prescriptive practices” means assessing the need for drugs, immunizing agents, or devices and writing a prescription to be filled by a licensed pharmacist.
  7. “Registered nurse” means an individual who holds a current license to practice in this state as a registered nurse and who practices nursing independently and interdependently through the application of the nursing process.
  8. “Specialty practice registered nurse” means an individual who holds a current license to practice in this state as a specialty practice registered nurse and who has current certification from a national certifying body in a specific area of nursing practice.
  9. “Unlicensed assistive person” means an assistant to the nurse, who regardless of title is authorized to perform nursing interventions delegated and supervised by a nurse.

Source:

S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 1; 1989, ch. 519, § 1; 1991, ch. 453, § 2; 1991, ch. 454, § 1; 1995, ch. 403, § 3; 2001, ch. 372, § 1; 2003, ch. 361, § 2; 2011, ch. 195, § 2; 2013, ch. 321, § 1.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01 and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-03. License or registration required — Title — Abbreviation.

Any person who provides nursing care to a resident of this state must hold a current license or registration issued by the board. It is unlawful for a person to practice nursing, offer to practice nursing, assist in the practice of nursing, or use any title, abbreviation, or designation to indicate that the person is practicing nursing or assisting in the practice of nursing in this state unless that person is currently licensed or registered under this chapter. An advanced practice registered nurse shall use the abbreviation “APRN” and may use the applicable role designation of certified nurse practitioner, certified registered nurse anesthetist, certified nurse midwife, or certified clinical nurse specialist inclusive of population foci. A currently licensed specialty practice registered nurse shall use the abbreviation “SPRN”; a currently licensed registered nurse shall use the abbreviation “R.N.”; a currently licensed practical nurse shall use the abbreviation “L.P.N.”; and an unlicensed assistive person with current registration may use the title identified by the employer. A person may not use the title “nurse” or be referred to as a “nurse” unless the person is currently licensed by the board or exempt under section 43-12.1-04.

Source:

S.L. 1977, ch. 400, § 1; 1995, ch. 403, § 4; 2001, ch. 372, § 2; 2013, ch. 321, § 2.

43-12.1-04. Persons exempt from provisions of chapter. [Effective through August 31, 2022]

This chapter does not apply to a person that is not licensed or registered under this chapter and is:

  1. A person that performs nursing interventions in cases of emergency or disaster.
  2. A student practicing nursing as a part of an in-state board-approved nursing education program.
  3. A licensed nurse of another state who is in good standing and who is employed in this state by the United States government or any of its bureaus, divisions, or agencies.
  4. A nurse licensed by another state or Canada, whose employment requires the nurse to accompany and care for a patient in transit for health care.
  5. A nurse licensed by another state whose employment by a resident of that state requires the nurse to accompany and care for the resident in North Dakota.
  6. An individual who performs nursing tasks for a family member.
  7. A person that renders assistance pursuant to chapter 23-27.
  8. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  9. A person that provides medications, other than by the parenteral route:
    1. Within a correctional facility, in compliance with section 12-44.1-29;
    2. Within a psychiatric residential treatment facility for children licensed under chapter 25-03.2 and North Dakota Administrative Code chapter 75-03-17;
    3. Within a treatment or care center for individuals with developmental disabilities licensed under chapter 25-16;
    4. Within a group home, a qualified residential treatment program, or an adult foster care facility licensed under section 50-11-01;
    5. Within the life skills and transition center, to the extent the individual who provides medications is a direct training technician or a vocational training technician as approved by the department of human services;
    6. Within a human service center licensed under chapter 50-06;
    7. Within a primary or secondary school under a program established under section 15.1-19-23 if the individual has received education and training in medication administration and has received written consent of the student’s parent or guardian; or
    8. Who is an employee of a qualified service provider agency who meets the criteria set forth in subsection 2 of section 50-24.1-18.
  10. A nurse currently licensed to practice nursing by another jurisdiction:
    1. Whose practice in another state requires that nurse to attend orientation, meetings, or continuing education in North Dakota;
    2. Who serves as a guest lecturer or short-term consultant; or
    3. Who provides evaluation undertaken on behalf of an accrediting organization.
  11. An individual, including a feeding assistant, performing nonhands-on tasks while employed in a Medicare-funded organization.
  12. A student practicing nursing as part of an out-of-state board-recognized nursing education program, upon written notification to the board and contingent upon clinical site availability.
  13. An individual who is registered on the state department of health nurse aide registry, including a certified nurse aide, home health aide, nurse aide, and medication assistant.

Source:

S.L. 1977, ch. 400, § 1; 1991, ch. 453, §§ 3, 4; 1995, ch. 403, § 5; 1995, ch. 404, § 1; 1999, ch. 376, § 1; 2001, ch. 372, § 3; 2003, ch. 361, §§ 3, 4; 2003, ch. 362, § 1; 2007, ch. 112, § 2; 2007, ch. 256, § 12; 2009, ch. 361, § 1; 2011, ch. 195, § 3; 2011, ch. 123, §§ 3, 4; 2013, ch. 154, § 3; 2013, ch. 226, § 1; 2015, ch. 200, § 30, effective August 1, 2015; 2019, ch. 405, § 1, effective August 1, 2019; 2019, ch. 404, § 3, effective October 1, 2019.

Note.

S.L. 2013, chapter 226, § 1, codified as N.D.C.C. § 25-04-01.1, provides for the substitution of “life skills and transition center” for “developmental center at westwood park, Grafton” or “developmental center” or any derivatives of those terms wherever they appear in the North Dakota Century Code.

Section 43-12.1-04 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 405, Session Laws 2019, House Bill 1099; and Section 3 of Chapter 404, Session Laws 2019, House Bill 1102.

Section 7 of chapter 405, S.L. 2019 provides, “ IMPLEMENTATION CONTINGENT UPON APPROPRIATION — APPLICATION. The department of human services is not required to implement or enforce sections 1, 2, 3, 4, and 6 of this Act with respect to agency foster home for adults and administration of routine medication if the legislative assembly does not provide an appropriation to support the implementation and enforcement of sections 1, 2, 3, 4, and 6 of this Act.”

43-12.1-04. Persons exempt from provisions of chapter. [Effective September 1, 2022]

This chapter does not apply to a person that is not licensed or registered under this chapter and is:

  1. A person that performs nursing interventions in cases of emergency or disaster.
  2. A student practicing nursing as a part of an in-state board-approved nursing education program.
  3. A licensed nurse of another state who is in good standing and who is employed in this state by the United States government or any of its bureaus, divisions, or agencies.
  4. A nurse licensed by another state or Canada, whose employment requires the nurse to accompany and care for a patient in transit for health care.
  5. A nurse licensed by another state whose employment by a resident of that state requires the nurse to accompany and care for the resident in North Dakota.
  6. An individual who performs nursing tasks for a family member.
  7. A person that renders assistance pursuant to chapter 23-27.
  8. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  9. A person that provides medications, other than by the parenteral route:
    1. Within a correctional facility, in compliance with section 12-44.1-29;
    2. Within a psychiatric residential treatment facility for children licensed under chapter 25-03.2 and North Dakota Administrative Code chapter 75-03-17;
    3. Within a treatment or care center for individuals with developmental disabilities licensed under chapter 25-16;
    4. Within a group home, a qualified residential treatment program, or an adult foster care facility licensed under section 50-11-01;
    5. Within the life skills and transition center, to the extent the individual who provides medications is a direct training technician or a vocational training technician as approved by the department of health and human services;
    6. Within a human service center licensed under chapter 50-06; or
    7. Within a primary or secondary school under a program established under section 15.1-19-23 if the individual has received education and training in medication administration and has received written consent of the student’s parent or guardian; or
    8. Who is an employee of a qualified service provider agency who meets the criteria set forth in subsection 2 of section 50-24.1-18.
  10. A nurse currently licensed to practice nursing by another jurisdiction:
    1. Whose practice in another state requires that nurse to attend orientation, meetings, or continuing education in North Dakota;
    2. Who serves as a guest lecturer or short-term consultant; or
    3. Who provides evaluation undertaken on behalf of an accrediting organization.
  11. An individual, including a feeding assistant, performing nonhands-on tasks while employed in a Medicare-funded organization.
  12. A student practicing nursing as part of an out-of-state board-recognized nursing education program, upon written notification to the board and contingent upon clinical site availability.
  13. An individual who is registered on the department of health and human services nurse aide registry, including a certified nurse aide, home health aide, nurse aide, and medication assistant.

Source:

S.L. 1977, ch. 400, § 1; 1991, ch. 453, §§ 3, 4; 1995, ch. 403, § 5; 1995, ch. 404, § 1; 1999, ch. 376, § 1; 2001, ch. 372, § 3; 2003, ch. 361, §§ 3, 4; 2003, ch. 362, § 1; 2007, ch. 112, § 2; 2007, ch. 256, § 12; 2009, ch. 361, § 1; 2011, ch. 195, § 3; 2011, ch. 123, §§ 3, 4; 2013, ch. 154, § 3; 2013, ch. 226, § 1; 2015, ch. 200, § 30, effective August 1, 2015; 2019, ch. 405, § 1, effective August 1, 2019; 2019, ch. 404, § 3, effective October 1, 2019; 2021, ch. 352, § 359, effective September 1, 2022.

43-12.1-05. Board of nursing — Composition — Term of office.

There is a state board of nursing whose members must be appointed by the governor which must consist of five registered nurses, one advanced practice registered nurse, two licensed practical nurses, and one public member. Each board member must be appointed for a term of four years. No appointee may be appointed for more than two consecutive terms. An appointment for an unexpired term of more than eighteen months will constitute a full term. Terms of nurse board members must be evenly distributed to allow two licensed nurse board members to be appointed or reappointed each year.

Source:

S.L. 1977, ch. 400, § 1; 1981, ch. 435, § 8; 1989, ch. 519, § 2; 1995, ch. 403, § 6; 2001, ch. 372, § 4; 2013, ch. 321, § 3.

43-12.1-06. Qualifications of board members.

  1. Each registered nurse must be an eligible voting resident of this state, possess an unencumbered registered nurse license under this chapter, and be currently engaged in practice as a registered nurse. A majority of the members under this subsection must be actively engaged in practice in a nurse-patient setting.
  2. Each licensed practical nurse must be an eligible voting resident of this state, possess an unencumbered practical nurse license under this chapter, and be currently engaged in practice as a licensed practical nurse. A majority of the members under this subsection must be actively engaged in practice in a nurse-patient setting.
  3. Each advanced practice registered nurse must be an eligible voting resident of this state, possess an unencumbered advanced practice registered nurse license under this chapter, and be currently engaged in practice as an advanced practice registered nurse.
  4. Each public member must be an eligible voting resident of this state and have no employment, professional license, or financial interest with any health care entity.
  5. Each member appointed to the board shall maintain the qualifications for appointment for the duration of the appointment. The governor may remove any member of the board for cause upon recommendation of two-thirds of the members of the board.

Source:

S.L. 1977, ch. 400, § 1; 1993, ch. 54, § 106; 1995, ch. 403, § 7; 2003, ch. 361, § 5; 2013, ch. 321, § 4.

43-12.1-07. Compensation of board members.

A member of the board is entitled to receive compensation in an amount fixed by the board for each day or portion of a day the member is actually engaged in the performance of official duties and such mileage reimbursement as is provided for in section 54-06-09. In addition, the member is entitled to reimbursement for actual and necessary expenses in the amounts provided by law for state officers in section 44-08-04. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 3; 1997, ch. 432, § 18; 2001, ch. 372, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expense of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-12.1-08. Duties of the board.

  1. The board shall regulate the practice of nursing as provided in this chapter.
  2. The board shall:
    1. Enforce this chapter.
    2. Adopt and enforce administrative rules necessary to administer this chapter after collaborating and consulting with North Dakota nursing organizations and other affected parties.
    3. Appoint and employ a registered nurse to serve as executive director and approve any additional staff positions necessary to administer this chapter.
    4. Establish fees and receive all moneys collected under this chapter and authorize all expenditures necessary to conduct the business of the board. Any balance of fees after payment of expenditures must be used to administer this chapter.
    5. Collect and analyze data regarding nursing education, nursing practice, and nursing resources.
    6. Issue and renew limited licenses or registrations to individuals requiring accommodation to practice nursing or assist in the practice of nursing.
    7. Establish a nursing student loan program funded by license fees to encourage individuals to enter and advance in the nursing profession.
    8. Establish a registry of individuals licensed or registered by the board.
    9. Report annually to the governor and nursing profession regarding the regulation of nursing in the state.
    10. Conduct and support projects pertaining to nursing education and practice.
    11. Adopt and enforce administrative rules to allow nurses licensed by another state to receive short-term clinical education in North Dakota health care facilities.
    12. License qualified applicants for nurse licensure.
    13. Register qualified applicants for the unlicensed assistive person registry.
    14. Adopt and enforce rules for continuing competence of licensees and registrants.
    15. Adopt and enforce rules for nursing practices.
    16. Issue practice statements regarding the interpretation and application of this chapter.

Source:

S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 4; 1991, ch. 453, § 5; 1991, ch. 454, § 2; 1991, ch. 455, § 1; 1995, ch. 403, § 8; 2001, ch. 372, § 6; 2003, ch. 361, § 6; 2007, ch. 361, § 1; 2013, ch. 321, § 5.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01, 43-12.1-02, and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Former subsection (6) of this section, which provided a duty to establish standards for all nursing education programs or acknowledge programs accredited by national nursing accrediting agencies, was to be read in conjunction with subsections (7) through (16). Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Constitutionality.

This section is not violative of Article III, section 1, of the North Dakota Constitution.Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Former subsection (6) of this section which gave the board the power to establish standards for nursing education programs or acknowledge programs accredited by national nursing accrediting agencies, was not unconstitutional as an unlawful delegation of legislative power. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

The board, through its rule-making power in determining who may recommend a person to take a nursing license examination, has not usurped legislative power. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Nursing Licensure.

The board has the authority pursuant to this section to direct that only associate and baccalaureate degree graduates may sit for practical and registered nursing license examinations, respectively. This appears to be a reasonable requirement in an area of standard setting. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

The board has the authority pursuant to this section to define “school” as “a post secondary educational institution offering transferable academic credit” excluding diploma nursing schools from operating nursing programs unless they offer transferable academic credits. That this marks a tightening of the rules as they relate to the licensing of nurses does not make the rule violative of the state or United States Constitutions. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-08.1. Prescriptive practices for registered nurses with advanced licenses. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-08.2. Nursing needs study. [Expired]

Expired under S.L. 2001, ch. 373, § 2.

43-12.1-09. Initial licensure and registration.

  1. The board shall license nurses and register unlicensed assistive person applicants. The board shall adopt and enforce administrative rules establishing qualifications for initial nursing licensure and unlicensed assistive person registration and for issuing limited licenses and registrations pursuant to subsection 3.
  2. Each applicant who successfully meets the requirements of this section is entitled to initial licensure or registration as follows:
    1. An applicant for licensure by examination to practice as a registered nurse or licensed practical nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit an official transcript that verifies completion of a board-approved in-state nursing education program that prepares the graduate for the level of licensure sought; or submit an official transcript that verifies completion of an out-of-state nursing education program that is approved by the state board of nursing of the jurisdiction in which the program is headquartered and that prepares the graduate for the level of licensure sought. The board shall adopt rules establishing standards for the approval of out-of-state nursing education programs.
      3. Pass an examination approved by the board.
    2. An applicant for licensure by endorsement to practice as a registered nurse or licensed practical nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit an official transcript that verifies completion of a nursing education program approved by the state board of nursing of the jurisdiction in which the program is headquartered and preparing the graduate for the level of licensure sought.
      3. Submit proof of initial licensure by examination with the examination meeting North Dakota requirements for licensure examinations in effect at the time the applicant qualified for initial licensure.
      4. Submit evidence of current unencumbered licensure in another state or jurisdiction or meet continued competency requirements as established by the board.
      5. Notwithstanding the foregoing requirements of this subdivision, an applicant for licensure as a licensed practical nurse is not required to meet any additional academic educational requirements for licensure as a licensed practical nurse if the applicant has been licensed in another state as a licensed practical nurse based upon completion of a registered nurse education program and if the applicant has had at least twenty-four months of unencumbered practice as a licensed practical nurse in another state within the four-year period immediately preceding the application.
    3. An applicant for licensure as an advanced practice registered nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit evidence of appropriate education and current certification in an advanced nursing role by a national nursing organization meeting criteria as established by the board. An advanced practice registered nurse applicant must have a graduate degree with a nursing focus or must have completed the educational requirements in effect when the applicant was initially licensed.
      3. Possess or show evidence of application for a current unencumbered registered nurse license.
    4. An applicant for licensure as an advanced practice registered nurse who completed an advanced nursing education program and was licensed or certified in advanced practice before December 31, 2015, may apply for and receive an advanced practice license if that applicant meets the requirements that were in effect at the time the applicant qualified for initial advanced practice licensure.
    5. An applicant for unlicensed assistive person registration shall:
      1. Submit a completed application and the appropriate fee as established by the board.
      2. Provide verification of appropriate training or evidence of certification or evaluation in the performance of basic nursing interventions.
    6. An applicant for licensure as a specialty practice registered nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit evidence of appropriate education and current certification in a specialty nursing role by a national nursing organization meeting criteria as established by the board. A specialty practice registered nurse applicant must have the educational preparation and national certification within a defined area of nursing practice.
      3. Possess or show evidence of application for a current unencumbered registered nurse license.
  3. For good cause shown, the board may issue a limited license or registration to an applicant.

Source:

S.L. 1977, ch. 400, § 1; 1995, ch. 403, § 9; 1997, ch. 369, § 1; 2001, ch. 372, § 7; 2003, ch. 361, § 8; 2007, ch. 361, § 2; 2013, ch. 321, § 6.

Law Reviews.

The Midwife and the Forceps: The Wild Terrain of Midwifery Law in the United States and Where North Dakota Is Heading in the Birthing Debate,84 N.D. L. Rev. 997 (2008).

43-12.1-09.1. Nursing licensure or registration — Criminal history record checks.

The board shall require each applicant for initial licensure and registration, including applicants for a multistate license under chapter 43-12.4, to submit to a statewide and nationwide criminal history record check. The board may require any licensee or registrant who is renewing a license or registration, including renewal of a multistate license under chapter 43-12.4, and any licensee or registrant who is the subject of a disciplinary investigation or proceeding to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant, licensee, or registrant. The board may grant a nonrenewable temporary permit to an applicant for initial or renewed license or registration who submits to a criminal history record check as required by this chapter if the applicant has met all other licensure or registration requirements in accordance with subsection 2 of section 43-12.1-09. The board may not share with, or disclose to, the interstate commission of nurse licensure compact administrators any contents of a nationwide criminal history record check.

Source:

S.L. 2007, ch. 115, § 9; 2013, ch. 321, § 7; 2017, ch. 287, § 1, effective August 1, 2017; 2017, ch. 288, § 1, effective August 1, 2017.

Note.

Section 43-12.1-09.1 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 288, Session Laws 2017, House Bill 1096; and Section 1 of Chapter 287, Session Laws 2017, House Bill 1097.

43-12.1-10. Renewal of license or registration — Reactivation.

  1. The board shall renew a current license to practice as an advanced practice registered nurse, specialty practice registered nurse, registered nurse, or licensed practical nurse if the licensee submits a renewal application, submits the appropriate fee established by the board, and meets all requirements for licensure. If a licensee does not renew a license before the license expires, the board shall reactivate that license if that licensee meets the reactivation requirements set by the board.
  2. The board shall renew the registration of an unlicensed assistive person if the registrant submits a renewal application, the appropriate fee established by the board, and documentation of competency by the employer or evidence of certification or evaluation. A lapsed unlicensed assistive person registration may be reactivated upon submission of the application, payment of the appropriate fee established by the board, and documentation of competency or evidence of certification or evaluation.
  3. For good cause shown, the board may issue a limited license or registration to a licensee or registrant. The board shall adopt rules establishing qualifications for issuing limited licenses and registrations pursuant to this subsection.

Source:

S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 5; 1995, ch. 403, § 10; 2001, ch. 372, § 8; 2003, ch. 361, § 9; 2007, ch. 361, § 3.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01 and 43-12.1-02 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-11. Duties of licensees and registrants.

Each individual licensed or registered by the board shall provide information requested by the board at the time of renewal or reactivation. Each individual licensed or registered by the board shall report to the board any knowledge of the performance of those acts or omissions that are violations of this chapter or grounds for disciplinary action as set forth in section 43-12.1-14. Each licensee or registrant shall report to the board any judgment or settlement in a professional or occupational malpractice action to which the licensee or registrant is a party. Any person, other than a licensee or registrant alleged to have violated this chapter, participating in good faith in making a report, assisting in an investigation, or furnishing information to an investigator, is immune from any civil or criminal liability that otherwise may result from reporting required by this section. For the purpose of any civil or criminal proceeding the good faith of any person required to report under this section is presumed.

Source:

S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 2; 1989, ch. 519, § 6; 1995, ch. 403, § 11; 2001, ch. 372, § 9; 2003, ch. 361, § 12; 2013, ch. 321, § 8.

43-12.1-12. Emergency treatment by nurses.

A nurse licensed under this chapter, who, in good faith, provides nursing care at the scene of an emergency, may provide only that nursing care as in the nurse’s judgment is at the time indicated. In the event of a disaster, a licensed nurse may initiate any therapeutic measure that is indicated according to that nurse’s judgment.

Source:

S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 3; 1995, ch. 403, § 12.

Law Reviews.

For Case Comment: Health — Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

43-12.1-13. Disciplinary proceedings.

Disciplinary proceedings under this chapter must be conducted in accordance with chapter 28-32. Fees for each separate violation or the assessment of costs and disbursements, or both, may be imposed against a respondent in addition to any licensure or registration sanctions the board may impose. An appeal from the final decision of the board may be taken to the district court of Burleigh County under chapter 28-32. The board shall furnish to the required state and federal databanks a list of individuals who have been disciplined by the board.

Source:

S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 7; 1995, ch. 403, § 13; 2001, ch. 372, § 10; 2013, ch. 321, § 9.

43-12.1-13.1. Emergency treatment by nurses. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-13.2. Emergency treatment by licensed nurses during disaster. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-14. Grounds for discipline — Penalties.

The board may deny, limit, revoke, encumber, or suspend any license or registration to practice nursing issued by the board or applied for in accordance with this chapter; reprimand, place on probation, or otherwise discipline a licensee, registrant, or applicant; deny admission to licensure or registration examination; require evidence of evaluation and treatment; or issue a nondisciplinary letter of concern to a licensee, registrant, or applicant, upon proof that the person:

  1. Has been arrested, charged, or convicted by a court, or has entered a plea of nolo contendere to a crime in any jurisdiction that relates adversely to the practice of nursing and the licensee or registrant has not demonstrated sufficient rehabilitation under section 12.1-33-02.1;
  2. Has been disciplined by a board of nursing in another jurisdiction, or has had a license or registration to practice nursing or to assist in the practice of nursing or to practice in another health care occupation or profession denied, revoked, suspended, or otherwise sanctioned;
  3. Has engaged in any practice inconsistent with the standards of nursing practice;
  4. Has obtained or attempted to obtain by fraud or deceit a license or registration to practice nursing, or has submitted to the board any information that is fraudulent, deceitful, or false;
  5. Has engaged in a pattern of practice or other behavior that demonstrates professional misconduct;
  6. Has diverted or attempted to divert supplies, equipment, drugs, or controlled substances for personal use or unauthorized use;
  7. Has practiced nursing or assisted in the practice of nursing in this state without a current license or registration or as otherwise prohibited by this chapter;
  8. Has failed to report any violation of this chapter or rules adopted under this chapter; or
  9. Has failed to observe and follow the duly adopted standards, policies, directives, and orders of the board, or has violated any other provision of this chapter.

Source:

S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 4; 1989, ch. 519, § 8; 1995, ch. 403, § 14; 2001, ch. 372, § 11; 2009, ch. 362, § 1; 2013, ch. 321, § 10.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Failure to Renew.

Subdivision 7 does not apply to a first-time, inadvertent failure to renew a license. Sande v. State, 440 N.W.2d 264, 1989 N.D. LEXIS 76 (N.D. 1989).

As a matter of law, nurse’s failure to renew her license was not a “willful” and “repeated” violation of the Nurse Practices Act. Sande v. State, 440 N.W.2d 264, 1989 N.D. LEXIS 76 (N.D. 1989).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

43-12.1-14.1. Grounds for discipline — Assistant to the nurse. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-14.2. Unlicensed assistive person — Practice without a registration.

If the board determines an unlicensed assistive person, whose registration has expired, violated subsection 7 of section 43-12.1-14 by practicing without a current registration for a period of up to four months from the initial date of employment, the action of the board in the case of a first violation is limited to the issuance of a letter of concern.

Source:

S.L. 2009, ch. 362, § 2.

43-12.1-14.3. Limitations on disciplinary actions.

The board may not take disciplinary action against an advanced practice registered nurse based solely on the advanced practice registered nurse prescribing or dispensing ivermectin for the off-label treatment or prevention of severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2, or any mutation or viral fragments of SARS-CoV-2.This section does not limit the board from taking a disciplinary action on another basis, such as unlicensed practice, inappropriate documentation, or substandard care, or any basis that would in the board’s determination harm the patient.

Source:

S.L. 2021, 1st Sp. Sess. ch. 559, § 1, effective November 15, 2021.

43-12.1-15. Violation — Penalties.

It is a class B misdemeanor for a person to willfully:

  1. Buy or sell, fraudulently obtain, or furnish any questions and answers used in the licensing examination for nurses, or assist others in the performance of these acts.
  2. Buy or sell, fraudulently obtain, or furnish any record that might enable an individual to obtain a license in this state or assist others in the performance of these acts.
  3. Practice as an advanced practice registered nurse, a specialty practice registered nurse, a registered nurse, a licensed practical nurse, or an unlicensed assistive person through use of a transcript from a school of nursing, diploma, certificate of registration, license, or record that was fraudulently created or obtained.
  4. Practice as an advanced practice registered nurse, a specialty practice registered nurse, a registered nurse, a licensed practical nurse, or an unlicensed assistive person as defined by this chapter unless licensed to do so.
  5. Conduct any education program preparing an individual for nursing licensure or registration unless the program has been approved by the board.
  6. Employ a person to practice nursing or perform nursing interventions unless the person is licensed or registered by the board.

Source:

S.L. 1977, ch. 400, § 1; 1991, ch. 453, § 6; 1995, ch. 403, § 15; 2001, ch. 372, § 12; 2003, ch. 361, § 13.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-12.1-16. Delegation of medication administration.

A licensed nurse may delegate medication administration to a person exempt under subsections 9 and 13 of section 43-12.1-04.

Source:

S.L. 1999, ch. 376, § 2; 2001, ch. 372, § 13; 2011, ch. 195, § 4.

43-12.1-16.1. Supervision and delegation of nursing interventions.

A nurse may supervise and delegate nursing interventions to an individual exempt under subsection 13 of section 43-12.1-04.

Source:

S.L. 2011, ch. 195, § 5.

43-12.1-17. Nursing education programs.

  1. The board shall adopt and enforce administrative rules establishing standards for nursing education programs leading to initial or advanced licensure. In-state programs must be approved by the board. Out-of-state programs must be approved by the state board of nursing of the jurisdiction in which the program is headquartered. The board shall approve, review, and reapprove nursing education programs in this state. The board may not require a statement of intent as part of the approval process under this section.
  2. The standards established under this section for a program leading to licensure as a licensed practical nurse:
    1. Must allow for a program that offers two or more academic years of course study or the equivalent;
    2. Must allow for a program that offers less than two academic years of course study or the equivalent; and
    3. May not allow for a program that offers less than one academic year of course study or the equivalent.
  3. The standards established under this section for a program leading to licensure as a registered nurse:
    1. Must allow for a program that offers four or more academic years of course study or the equivalent;
    2. Must allow for a program that offers less than four academic years of course study or the equivalent; and
    3. May not allow for a program that offers less than two academic years of course study or the equivalent.

Source:

S.L. 2003, ch. 361, § 7; 2013, ch. 321, § 11.

43-12.1-18. Nursing practice standards. [Repealed]

Repealed by S.L. 2013, ch. 321, § 12.

43-12.1-19. Transition from transitional nurse licenses. [Expired]

Expired under S.L. 2003, ch. 361, § 10.

43-12.1-20. Continuing education requirements. [Repealed]

Repealed by S.L. 2013, ch. 321, § 12.

CHAPTER 43-12.2 Medical Personnel Loan Repayment Program [Repealed]

§ 43-12.2-01. State-community matching loan repayment program for nurse practitioners, physician assistants, and certified nurse midwives. [Repealed]

§ 43-12.2-02. Powers of state health council. [Repealed]

§ 43-12.2-03. Nurse practitioner, physician assistant, and certified nurse midwife selection criteria — Eligibility for loan repayment. [Repealed]

§ 43-12.2-04. Community selection criteria. [Repealed]

§ 43-12.2-05. Eligible loans. [Repealed]

§ 43-12.2-06. Breach of loan repayment contract. [Repealed]

§ 43-12.2-07. Release from contract obligation. [Repealed]

§ 43-12.2-08. Term of obligated service. [Repealed]

§ 43-12.2-09. Payment. [Repealed]

[Repealed by S.L. 2015, ch. 294, § 8]

§ 43-12.2-01. State-community matching loan repayment program for nurse practitioners, physician assistants, and certified nurse midwives. [Repealed]

Source:

S.L. 1993, ch. 425, § 2; 2009, ch. 363, § 1; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-02. Powers of state health council. [Repealed]

Source:

S.L. 1993, ch. 425, § 3; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-03. Nurse practitioner, physician assistant, and certified nurse midwife selection criteria — Eligibility for loan repayment. [Repealed]

Source:

S.L. 1993, ch. 425, § 4; 2009, ch. 363, § 2; 2011, ch. 3, § 18; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-04. Community selection criteria. [Repealed]

Source:

S.L. 1993, ch. 425, § 5; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-05. Eligible loans. [Repealed]

Source:

S.L. 1993, ch. 425, § 6; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-06. Breach of loan repayment contract. [Repealed]

Source:

S.L. 1993, ch. 425, § 7; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-07. Release from contract obligation. [Repealed]

Source:

S.L. 1993, ch. 425, § 8; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-08. Term of obligated service. [Repealed]

Source:

S.L. 1993, ch. 425, § 9; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-09. Payment. [Repealed]

Source:

S.L. 1993, ch. 425, § 10; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

CHAPTER 43-12.3 Health Care Professional Student Loan Repayment Program

§ 43-12.3-03. Public and private entities - Selection criteria - Matching funds.

§ 43-12.3-07. Powers of the health council — Continuing appropriation.

43-12.3-01. Student loan repayment programs — Health care professionals.

The health council shall administer student loan repayment programs, as established by this chapter, for health care professionals willing to provide services in areas of this state that have a defined need for such services.

Source:

S.L. 2015, ch. 294, § 1, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-02. Application process.

The health council shall develop an application process for public and private entities seeking to fill health care needs and for health care professionals willing to provide necessary services in exchange for benefits under a student loan repayment program.

Source:

S.L. 2015, ch. 294, § 2, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

§ 43-12.3-03. Public and private entities - Selection criteria - Matching funds.

  1. The health council shall establish criteria to be used in selecting public and private entities for participation in a program. The criteria must include:
    1. The number of health care professionals, by specified field, already providing services in the area;
    2. Access to health care services in the area; and
    3. The level of support from the area.
  2. The health council may consult with health care and social service providers, advocacy groups, governmental entities, and others in establishing criteria and evaluating needs based on the criteria.
  3. An entity may not be selected for participation unless it contractually commits to provide matching funds equal to the amount required for a loan repayment program in accordance with section 43-12.3-06.

Source:

S.L. 2015, ch. 294, § 3, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-04. Public and private entities — Eligibility for participation — Priority.

In selecting public and private entities for participation in a program the health council shall give priority to an entity that:

  1. Meets the selection criteria;
  2. Is located in an area that is statistically underserved; and
  3. Is located at least twenty miles [32.18 kilometers] outside the boundary of a city having more than forty thousand residents.

Source:

S.L. 2015, ch. 294, § 4, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-05. Health care professionals — Selection criteria.

  1. The health council shall establish criteria to be used in selecting health care professionals for participation in a student loan repayment program. The criteria must include:
    1. The health care professional’s specialty;
    2. The need for the health care professional’s specialty within an area;
    3. The health care professional’s education and experience;
    4. The health care professional’s date of availability and anticipated term of availability; and
    5. The health care professional’s willingness to accept Medicare and Medicaid assignments, if applicable.
  2. In selecting health care professionals for participation in the program the health council shall require that the individual:
    1. Is physically present at and provides services on a full-time basis to an entity that meets the requirements of section 43-12.3-04; or
      1. Is physically present at and provides services on at least a half-time basis to an entity that meets the requirements of section 43-12.3-04;
      2. Provides telehealth services to a second entity that meets the requirements of section 43-12.3-04; and
      3. Verifies that the services provided under paragraphs 1 and 2 are equal to the full-time requirement of subdivision a.
  3. In selecting health care professionals for participation in a program, the health council may consider an individual’s:
    1. Length of residency in this state; and
    2. Attendance at an in-state or an out-of-state institution of higher education.

Source:

S.L. 2015, ch. 294, § 5, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-06. Student loan repayment program — Contract.

  1. The health council shall enter a contract with a selected health care professional. The health council shall agree to provide student loan repayments on behalf of the selected health care professional subject to the requirements and limitations of this section.
    1. For a physician:
      1. The loan repayment may not exceed twenty thousand dollars per year, and may not exceed one hundred thousand dollars over five years; and
      2. The matching funds must equal fifty percent of the amount required in paragraph 1.
    2. For a clinical psychologist:
      1. The loan repayment may not exceed twelve thousand dollars per year, and may not exceed sixty thousand dollars over five years; and
      2. The matching funds must equal twenty-five percent of the amount required in paragraph 1.
    3. For an advanced practice registered nurse or a physician assistant:
      1. The loan repayment may not exceed four thousand dollars per year, and may not exceed twenty thousand dollars over five years; and
      2. The matching funds must equal ten percent of the amount required in paragraph 1.
    4. For a behavioral health professional:
      1. The loan repayment may not exceed four thousand dollars per year, and may not exceed twenty thousand dollars over five years; and
      2. The matching funds must equal ten percent of the amount required in paragraph 1.
    5. For purposes of this section, a behavioral health professional means an individual who practices in the behavioral health field and is:
      1. A licensed addiction counselor;
      2. A licensed professional counselor;
      3. A licensed social worker;
      4. A registered nurse;
      5. A specialty practice registered nurse; or
      6. A licensed behavior analyst.

Source:

S.L. 2015, ch. 294, § 6, effective August 1, 2015; 2019, ch. 348, § 1, effective August 1, 2019; 2021, ch. 310, § 1, effective August 1, 2021.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

§ 43-12.3-07. Powers of the health council — Continuing appropriation.

  1. The health council may:
    1. Receive and expend any gifts, grants, and other funds for the purposes of this program;
    2. Participate in any federal programs providing for the repayment of student loans on behalf of health care professionals; and
    3. Do all things necessary and proper for the administration of this chapter.
  2. All moneys received by the health council under this section are appropriated to the health council on a continuing basis, to be used exclusively for the purposes of this chapter.

Source:

S.L. 2015, ch. 294, § 7, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

CHAPTER 43-12.4 Nurse Licensure Compact

Source:

S.L. 2017, ch. 287, § 2, effective August 1, 2017.

43-12.4-01. Nurse licensure compact.

History. S.L. 2017, ch. 287, § 2, effective August 1, 2017.

ARTICLE I — FINDINGS AND DECLARATION OF PURPOSE

  1. The party states find that:
    1. The health and safety of the public are affected by the degree of compliance with and the effectiveness of enforcement activities related to state nurse licensure laws;
    2. Violations of nurse licensure and other laws regulating the practice of nursing may result in injury or harm to the public;
    3. The expanded mobility of nurses and the use of advanced communication technologies as part of our nation’s health care delivery system require greater coordination and cooperation among states in the areas of nurse licensure and regulation;
    4. New practice modalities and technology make compliance with individual state nurse licensure laws difficult and complex;
    5. The current system of duplicative licensure for nurses practicing in multiple states is cumbersome and redundant for both nurses and states; and
    6. Uniformity of nurse licensure requirements throughout the states promotes public safety and public health benefits.
  2. The general purposes of this compact are to:
    1. Facilitate the states’ responsibility to protect the public’s health and safety;
    2. Ensure and encourage the cooperation of party states in the areas of nurse licensure and regulation;
    3. Facilitate the exchange of information between party states in the areas of nurse regulation, investigation, and adverse actions;
    4. Promote compliance with the laws governing the practice of nursing in each jurisdiction;
    5. Invest all party states with the authority to hold a nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state licenses;
    6. Decrease redundancies in the consideration and issuance of nurse licenses; and
    7. Provide opportunities for interstate practice by nurses who meet uniform licensure requirements.
  3. “Coordinated licensure information system” means an integrated process for collecting, storing, and sharing information on nurse licensure and enforcement activities related to nurse licensure laws which is administered by a nonprofit organization composed of and controlled by licensing boards.
  4. “Current significant investigative information” means:
    1. Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the nurse to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or
    2. Investigative information that indicates that the nurse represents an immediate threat to public health and safety regardless of whether the nurse has been notified and had an opportunity to respond.
  5. “Encumbrance” means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board.
  6. “Home state” means the party state that is the nurse’s primary state of residence.
  7. “Licensing board” means a party state’s regulatory body responsible for issuing nurse licenses.
  8. “Multistate license” means a license to practice as a registered or a licensed practical/vocational nurse issued by a home state licensing board which authorizes the licensed nurse to practice in all party states under a multistate licensure privilege.
  9. “Multistate licensure privilege” means a legal authorization associated with a multistate license permitting the practice of nursing as either a registered nurse or licensed practical/vocational nurse in a remote state.
  10. “Nurse” means registered nurse or licensed practical/vocational nurse, as those terms are defined by each party state’s practice laws.
  11. “Party state” means any state that has adopted this compact.
  12. “Remote state” means a party state, other than the home state.
  13. “Single-state license” means a nurse license issued by a party state which authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.
  14. “State” means a state, territory, or possession of the United States and the District of Columbia.
  15. “State practice laws” means a party state’s laws, rules, and regulations that govern the practice of nursing, define the scope of nursing practice, and create the methods and grounds for imposing discipline. “State practice laws” do not include requirements necessary to obtain and retain a license, except for qualifications or requirements of the home state.
    1. Meets the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws;
    2. (1)  Has graduated or is eligible to graduate from a licensing board-approved registered nurse or licensed practical/vocational nurse prelicensure education program; or
    3. Has, if a graduate of a foreign prelicensure education program not taught in English or if English is not the individual’s native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing, and listening;
    4. Has successfully passed an NCLEX-RN® or NCLEX-PN® Examination or recognized predecessor, as applicable;
    5. Is eligible for or holds an active, unencumbered license;
    6. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records;
    7. Has not been convicted or found guilty, or has entered an agreed disposition, of a felony offense under applicable state or federal criminal law;
    8. Has not been convicted or found guilty, or has entered an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis;
    9. Is not currently enrolled in an alternative program;
    10. Is subject to self-disclosure requirements regarding current participation in an alternative program; and
    11. Has a valid United States social security number.
      1. Only the home state has the power to take adverse action against a nurse’s license issued by the home state.
      2. For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct received from a remote state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
      3. Current, threatened, or reasonably anticipated litigation;
      4. Negotiation of contracts for the purchase or sale of goods, services, or real estate;
      5. Accusing any person of a crime or formally censuring any person;
      6. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
      7. Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;
      8. Disclosure of investigatory records compiled for law enforcement purposes;
      9. Disclosure of information related to any reports prepared by or on behalf of the Commission for the purpose of investigation of compliance with this compact; or
      10. Matters specifically exempted from disclosure by federal or state statute.
    12. Appoint committees, including advisory committees comprised of administrators, state nursing regulators, state legislators or their representatives, consumer representatives, and other such interested persons;
    13. Provide and receive information from, and to cooperate with, law enforcement agencies;
    14. Adopt and use an official seal; and
    15. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of nurse licensure and practice.
      1. Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default, or any other action to be taken by the commission; and
      2. Provide remedial training and specific technical assistance regarding the default.

ARTICLE II — DEFINITIONS

As used in this compact:

1. “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against a nurse, including actions against an individual’s license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee’s practice, or any other encumbrance on licensure affecting a nurse’s authorization to practice, including issuance of a cease and desist action.

2. “Alternative program” means a nondisciplinary monitoring program approved by a licensing board.

ARTICLE III — GENERAL PROVISIONS AND JURISDICTION

1. A multistate license to practice registered or licensed practical/vocational nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a nurse to practice as a registered nurse or as a licensed practical/vocational nurse, under a multistate licensure privilege, in each party state.

2. A state shall implement procedures for considering the criminal history records of applicants for initial multistate license or licensure by endorsement. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant’s criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records.

3. Each party state shall require the following for an applicant to obtain or retain a multistate license in the home state:

(2) Has graduated from a foreign registered nurse or licensed practical/vocational nurse prelicensure education program that:

  1. Has been approved by the authorized accrediting body in the applicable country; and
  2. Has been verified by an independent credentials review agency to be comparable to a licensing board-approved prelicensure education program;

4. All party states may, in accordance with existing state due process law, to take adverse action against a nurse’s multistate licensure privilege such as revocation, suspension, probation, or any other action that affects a nurse’s authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such action, it promptly shall notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the home state of any such actions by remote states.

5. A nurse practicing in a party state shall comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of nursing is not limited to patient care, but includes all nursing practice as defined by the state practice laws of the party state in which the client is located. The practice of nursing in a party state under a multistate licensure privilege will subject a nurse to the jurisdiction of the licensing board, the courts, and the laws of the party state in which the client is located at the time service is provided.

6. Individuals not residing in a party state continue to be able to apply for a party state’s single- state license as provided under the laws of each party state. However, the single-state license granted to these individuals will not be recognized as granting the privilege to practice nursing in any other party state. This compact does not affect the requirements established by a party state for the issuance of a single-state license.

7. Any nurse holding a home state multistate license, on the effective date of this compact, may retain and renew the multistate license issued by the nurse’s then-current home state, provided that:

a. A nurse, who changes primary state of residence after this compact’s effective date, shall meet all applicable requirements of subsection 3 of article III to obtain a multistate license from a new home state.

b. A nurse who fails to satisfy the multistate licensure requirements in subsection 3 of article III due to a disqualifying event occurring after this compact’s effective date is ineligible to retain or renew a multistate license, and the nurse’s multistate license must be revoked or deactivated in accordance with applicable rules adopted by the Interstate Commission of Nurse Licensure Compact Administrators (“commission”).

ARTICLE IV — APPLICATIONS FOR LICENSURE IN A PARTY STATE

1. Upon application for a multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant, and whether the applicant is currently participating in an alternative program.

2. A nurse may hold a multistate license, issued by the home state, in only one party state at a time.

3. If a nurse changes primary state of residence by moving between two party states, the nurse shall apply for licensure in the new home state, and the multistate license issued by the prior home state will be deactivated in accordance with applicable rules adopted by the commission.

a. The nurse may apply for licensure in advance of a change in primary state of residence.

b. A multistate license may not be issued by the new home state until the nurse provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate license from the new home state.

4. If a nurse changes primary state of residence by moving from a party state to a nonparty state, the multistate license issued by the prior home state will convert to a single-state license, valid only in the former home state.

ARTICLE V — ADDITIONAL AUTHORITIES INVESTED IN PARTY STATE LICENSING BOARDS

1. In addition to the other powers conferred by state law, a licensing board may:

a. Take adverse action against a nurse’s multistate licensure privilege to practice within that party state.

b. Issue cease and desist orders or impose an encumbrance on a nurse’s authority to practice within that party state.

c. Complete any pending investigations of a nurse who changes primary state of residence during the course of such investigations. The licensing board also may take any appropriate action and promptly shall report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the new home state of any such actions.

d. Issue subpoenas for both hearings and investigations which require the attendance and testimony of witnesses, as well as, the production of evidence. Subpoenas issued by a licensing board in a party state for the attendance and testimony of witnesses or the production of evidence from another party state must be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state in which the witnesses or evidence are located.

e. Obtain and submit, for each nurse licensure applicant, fingerprint or other biometric-based information to the federal bureau of investigation for criminal background checks, receive the results of the federal bureau of investigation record search on criminal background checks, and use the results in making licensure decisions.

f. If otherwise permitted by state law, recover from the affected nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that nurse.

g. Take adverse action based on the factual findings of the remote state, if the licensing board follows its own procedures for taking such adverse action.

2. If adverse action is taken by the home state against a nurse’s multistate license, the nurse’s multistate licensure privilege to practice in all other party states must be deactivated until all encumbrances have been removed from the multistate license. All home state disciplinary orders that impose adverse action against a nurse’s multistate license shall include a statement that the nurse’s multistate licensure privilege is deactivated in all party states during the pendency of the order.

3. This compact does not override a party state’s decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any nurse for the duration of the nurse’s participation in an alternative program.

ARTICLE VI — COORDINATED LICENSURE INFORMATION SYSTEM AND EXCHANGE OF INFORMATION

1. All party states shall participate in a coordinated licensure information system of all licensed registered nurses and licensed practical/vocational nurses. This system includes information on the licensure and disciplinary history of each nurse, as submitted by party states, to assist in the coordination of nurse licensure and enforcement efforts.

2. The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection, and exchange of information under this compact.

3. All licensing boards promptly shall report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications (with the reasons for such denials), and nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic or confidential under state law.

4. Current significant investigative information and participation in nonpublic or confidential alternative programs must be transmitted through the coordinated licensure information system only to party state licensing boards.

5. Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

6. Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board may not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

7. Any information contributed to the coordinated licensure information system which is subsequently required to be expunged by the laws of the party state contributing that information also must be expunged from the coordinated licensure information system.

8. The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state, which must include, at a minimum:

a. Identifying information;

b. Licensure data;

c. Information related to alternative program participation; and

d. Other information that may facilitate the administration of this compact, as determined by commission rules.

9. The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

ARTICLE VII — ESTABLISHMENT OF THE INTERSTATE COMMISSION OF NURSE LICENSURE COMPACT ADMINISTRATORS

1. The party states hereby create and establish a joint public entity known as the Interstate Commission of Nurse Licensure Compact Administrators.

a. The commission is an instrumentality of the party states.

b. Venue is proper, and judicial proceedings by or against the commission must be brought solely and exclusively, in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

c. This compact may not be construed to be a waiver of sovereign immunity.

2. Membership, voting, and meetings.

a. Each party state must have and be limited to one administrator. The head of the state licensing board or designee is the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the law of the state from which the administrator is appointed. Any vacancy occurring in the commission must be filled in accordance with the laws of the party state in which the vacancy exists.

b. Each administrator is entitled to one vote with regard to the promulgation of rules and creation of bylaws and otherwise has an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator’s participation in meetings by telephone or other means of communication.

c. The commission shall meet at least once during each calendar year. Additional meetings must be held as set forth in the bylaws or rules of the commission.

d. All meetings are open to the public, and public notice of meetings must be given in the same manner as required under the rulemaking provisions in Article VIII.

e. The commission may convene in a closed, nonpublic meeting if the commission discusses:

(1) Noncompliance of a party state with its obligations under this compact;

(2) The employment, compensation, discipline, or other personnel matters, practices, or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

f. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons for the actions taken, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

3. By a majority vote of the administrators, the commission shall prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

a. Establishing the fiscal year of the commission;

b. Providing reasonable standards and procedures:

(1) For the establishment and meetings of other committees; and

(2) Governing any general or specific delegation of any authority or function of the commission;

c. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission shall make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed;

d. Establishing the titles, duties, and authority and reasonable procedures for the election of the officers of the commission;

e. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws exclusively must govern the personnel policies and programs of the commission; and

f. Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of this compact after the payment or reserving of all of its debts and obligations;

4. The commission shall publish its bylaws and rules, and any amendments thereto, in a convenient form on the website of the commission.

5. The commission shall maintain its financial records in accordance with the bylaws.

6. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

7. The commission may:

a. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules have the force and effect of law and are binding in all party states;

b. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any licensing board to sue or be sued under applicable law may not be affected;

c. Purchase and maintain insurance and bonds;

d. Borrow, accept, or contract for services of personnel, including, but not limited to, employees of a party state or nonprofit organizations;

e. Cooperate with other organizations that administer state compacts related to the regulation of nursing, including sharing administrative or staff expenses, office space, or other resources;

f. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

g. Accept any and all appropriate donations, grants, and gifts of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same if at all times the commission avoids any appearance of impropriety or conflict of interest;

h. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, whether real, personal, or mixed if at all times the commission avoids any appearance of impropriety;

i. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed;

j. Establish a budget and make expenditures;

k. Borrow money;

8. Financing of the commission.

a. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

b. The commission may also levy on and collect an annual assessment from each party state to cover the cost of its operations, activities, and staff in its annual budget as approved each year. The aggregate annual assessment amount, if any, must be allocated based upon a formula to be determined by the commission, which shall promulgate a rule that is binding upon all party states.

c. The commission may not incur obligations of any kind before securing the funds adequate to meet the same, nor may the commission pledge the credit of any of the party states, except by, and with the authority of, such party state.

d. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission must be audited yearly by a certified or licensed public accountant, and the report of the audit must be included in and become part of the annual report of the commission.

9. Qualified immunity, defense, and indemnification.

a. The administrators, officers, executive director, employees, and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against which the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities. However, this subdivision may not be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

b. The commission shall defend any administrator, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against which the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities. However, this subdivision may not be construed to prohibit that person from retaining that person’s own counsel and provided further that the actual or alleged act, error, or omission did not result from that person’s intentional, willful, or wanton misconduct.

c. The commission shall indemnify and hold harmless any administrator, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities provided that the actual or alleged act, error, or omission did not result from the intentional, willful, or wanton misconduct of that person.

ARTICLE VIII — RULEMAKING

1. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted under this article. Rules and amendments become binding as of the date specified in each rule or amendment and have the same force and effect as provisions of this compact.

2. Rules or amendments to the rules must be adopted at a regular or special meeting of the commission.

3. Before the promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

a. On the website of the commission; and

b. On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

4. The notice of proposed rulemaking must include:

a. The proposed time, date, and location of the meeting at which the rule will be considered and voted upon;

b. The text of the proposed rule or amendment, and the reason for the proposed rule;

c. A request for comments on the proposed rule from any interested person; and

d. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

5. Before adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which must be made available to the public.

6. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

7. The commission shall publish the place, time, and date of the scheduled public hearing.

a. Hearings must be conducted in a manner providing each person that wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings will be recorded, and a copy must be made available upon request.

b. This section may not be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

8. If no one appears at the public hearing, the commission may proceed with promulgation of the proposed rule.

9. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

10. By majority vote of all administrators, the commission shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

11. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing. However, the usual rulemaking procedures provided in this compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

a. Meet an imminent threat to public health, safety, or welfare;

b. Prevent a loss of commission or party state funds; or

c. Meet a deadline for the promulgation of an administrative rule that is required by federal law or rule.

12. The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge must be made in writing, and delivered to the commission before the end of the notice period. If a challenge is not made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE IX — OVERSIGHT, DISPUTE, RESOLUTION AND ENFORCEMENT

1. Oversight.

a. Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact’s purposes and intent.

b. The commission is entitled to receive service of process in any proceeding that may affect the powers, responsibilities, or actions of the commission, and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process in such proceeding to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.

2. Default, technical assistance, and termination.

a. If the commission determines a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

b. If a state in default fails to cure the default, the defaulting state’s membership in this compact may be terminated upon an affirmative vote of a majority of the administrators, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

c. Termination of membership in this compact may be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor of the defaulting state and to the executive officer of the defaulting state’s licensing board and each of the party states.

d. A state whose membership in this compact has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

e. The commission may not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated unless agreed upon in writing between the commission and the defaulting state.

f. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party must be awarded all costs of such litigation, including reasonable attorney’s fees.

3. Dispute resolution.

a. Upon request by a party state, the commission shall attempt to resolve disputes related to the compact which arise among party states and between party and nonparty states.

b. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

c. If the commission cannot resolve disputes among party states arising under this compact:

(1) The party states may submit the issues in dispute to an arbitration panel, which will be comprised of individuals appointed by the compact administrator in each of the affected party states and an individual mutually agreed upon by the compact administrators of all the party states involved in the dispute.

(2) The decision of a majority of the arbitrators is final and binding.

4. Enforcement.

a. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

b. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney’s fees.

c. The remedies herein are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE X — EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT

1. This compact becomes effective and binding on the earlier of the date of legislative enactment of this compact into law by no less than twenty-six states or December 31, 2018. All party states to this compact, that also were parties to the prior nurse licensure compact, superseded by this compact, (“prior compact”), are deemed to have withdrawn from said prior compact within six months after the effective date of this compact.

2. Each party state to this compact shall continue to recognize a nurse’s multistate licensure privilege to practice in that party state issued under the prior compact until such party state has withdrawn from the prior compact.

3. Any party state may withdraw from this compact by enacting a statute repealing the same. A party state’s withdrawal does not take effect until six months after enactment of the repealing statute.

4. A party state’s withdrawal or termination does not affect the continuing requirement of the withdrawing or terminated state’s licensing board to report adverse actions and significant investigations occurring prior to the effective date of such withdrawal or termination.

5. This compact may not be construed to invalidate or prevent any nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that is made in accordance with the other provisions of this compact.

6. This compact may be amended by the party states. An amendment to this compact does not become effective and binding upon the party states unless and until it is enacted into the laws of all party states.

7. Representatives of nonparty states to this compact must be invited to participate in the activities of the commission, on a nonvoting basis, prior to the adoption of this compact by all states.

ARTICLE XI — CONSTRUCTION AND SEVERABILITY

This compact must be liberally construed so as to effectuate the purposes thereof. The provisions of this compact are severable, and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or if the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance may not be affected thereby. If this compact is held to be contrary to the constitution of any party state, this compact remains in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

The term “head of the state licensing board” as used to define the compact administrator in subdivision a of subsection 2 of article VII means the executive director of the state board of nursing.

CHAPTER 43-12.5 Advanced Practice Registered Nurse Licensure Compact

Source:

S.L. 2017, ch. 288, § 2, effective August 1, 2017.

43-12.5-01. Advanced practice registered nurse licensure compact.

History. S.L. 2017, ch. 288, § 2, effective August 1, 2017; 2021, hb1044, § 1, effective August 1, 2021.

ARTICLE I — FINDINGS AND DECLARATION OF PURPOSE

  1. The party states find that:
    1. The health and safety of the public are affected by the degree of compliance with advanced practice registered nurse licensure requirements and the effectiveness of enforcement activities related to state advanced practice registered nurse licensure laws;
    2. Violations of advanced practice registered nurse licensure and other laws regulating the practice of nursing may result in injury or harm to the public;
    3. The expanded mobility of advanced practice registered nurses and the use of advanced communication and intervention technologies as part of our nation’s health care delivery system require greater coordination and cooperation among states in the areas of advanced practice registered nurse licensure and regulation;
    4. New practice modalities and technology make compliance with individual state advanced practice registered nurse licensure laws difficult and complex;
    5. The current system of duplicative advanced practice registered nurse licensure for advanced practice registered nurses practicing in multiple states is cumbersome and redundant for health care delivery systems, payors, state licensing boards, regulators, and advanced practice registered nurses; and
    6. Uniformity of advanced practice registered nurse licensure requirements throughout the states promotes public safety and public health benefits as well as providing a mechanism to increase access to care.
  2. The general purposes of this compact are to:
    1. Facilitate the states’ responsibility to protect the public’s health and safety;
    2. Ensure and encourage the cooperation of party states in the areas of advanced practice registered nurse licensure and regulation, including promotion of uniform licensure requirements;
    3. Facilitate the exchange of information between party states in the areas of advanced practice registered nurse regulation, investigation, and adverse actions;
    4. Promote compliance with the laws governing advanced practice registered nurse practice in each jurisdiction;
    5. Invest all party states with the authority to hold an advanced practice registered nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state privileges to practice;
    6. Decrease redundancies in the consideration and issuance of advanced practice registered nurse licenses; and
    7. Provide opportunities for interstate practice by advanced practice registered nurses who meet uniform licensure requirements.
  3. “Advanced practice registered nurse uniform licensure requirements” means the minimum uniform licensure, education, and examination requirements set forth in subsection 2 of article III.
  4. “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against an advanced practice registered nurse, including actions against an individual’s license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee’s practice, or any other encumbrance on licensure affecting an advanced practice registered nurse’s authorization to practice, including the issuance of a cease and desist action.
  5. “Alternative program” means a non-disciplinary monitoring program approved by a licensing board.
  6. “Coordinated licensure information system” means an integrated process for collecting, storing, and sharing information on advanced practice registered nurse licensure and enforcement activities related to advanced practice registered nurse licensure laws which is administered by a nonprofit organization composed of and controlled by licensing boards.
  7. “Current significant investigatory information” means:
    1. Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the advanced practice registered nurse to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or
    2. Investigative information that indicates that the advanced practice registered nurse represents an immediate threat to public health and safety regardless of whether the advanced practice registered nurse has been notified and had an opportunity to respond.
  8. “Encumbrance” means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board in connection with a disciplinary proceeding.
  9. “Home state” means the party state that is the advanced practice registered nurse’s primary state of residence.
  10. “Licensing board” means a party state’s regulatory body responsible for regulating the practice of advanced practice registered nursing.
  11. “Multistate license” means an advanced practice registered nurse license to practice as an advanced practice registered nurse issued by a home state licensing board which authorizes the advanced practice registered nurse to practice as an advanced practice registered nurse in all party states under a multistate licensure privilege, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.
  12. “Multistate licensure privilege” means a legal authorization associated with an advanced practice registered nurse multistate license which permits an advanced practice registered nurse to practice as an advanced practice registered nurse in a remote state, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.
  13. “Noncontrolled prescription drug” means a device or drug that is not a controlled substance and is prohibited under state or federal law from being dispensed without a prescription. The term includes a device or drug that bears or is required to bear the legend “caution: federal law prohibits dispensing without prescription” or “prescription only” or other legend that complies with federal law.
  14. “Party state” means any state that has adopted this compact.
  15. “Population focus” means one of the six population foci of family or individual across the lifespan, adult-gerontology, pediatrics, neonatal, women’s health or gender-related, and psychiatric mental health.
  16. “Prescriptive authority” means the legal authority to prescribe medications and devices as defined by party state laws.
  17. “Remote state” means a party state that is not the home state.
  18. “Role” means one of the four recognized roles of certified registered nurse anesthetists, certified nurse midwives, clinical nurse specialists, and certified nurse practitioners.
  19. “Single-state license” means an advanced practice registered nurse license issued by a party state which authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.
  20. “State” means a state, territory, or possession of the United States and the District of Columbia.
  21. “State practice laws” means a party state’s laws, rules, and regulations that govern advanced practice registered nurse practice, define the scope of advanced nursing practice, and create the methods and grounds for imposing discipline except that prescriptive authority must be treated in accordance with subsections 6 and 7 of article III. State practice laws do not include:
    1. A party state’s laws, rules, and regulations requiring supervision or collaboration with a health care professional, except for laws, rules, and regulations regarding prescribing controlled substances; and
    2. The requirements necessary to obtain and retain an advanced practice registered nurse license, except for qualifications or requirements of the home state.
    3. Has, if a graduate of a foreign advanced practice registered nurse program not taught in English or if English is not the individual’s native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing, and listening;
    4. Has successfully passed a national certification examination that measures advanced practice registered nurse, role and population-focused competencies and maintains continued competence as evidenced by recertification in the role and population focus through the national certification program;
    5. Holds an active, unencumbered license as a registered nurse and an active, unencumbered authorization to practice as an advanced practice registered nurse;
    6. Has successfully passed an NCLEX-RN® examination or recognized predecessor, as applicable;
    7. Has practiced for at least two thousand eighty hours as an advanced practice registered nurse in a role and population focus congruent with the applicant’s education and training. For purposes of this section, practice must not include hours obtained as part of enrollment in an advanced practice registered nurse education program;
    8. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state or, if applicable, foreign country’s criminal records;
    9. Has not been convicted or found guilty or, has entered into an agreed disposition of a felony offense under applicable state, federal, or foreign criminal law;
    10. Has not been convicted or found guilty or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined by factors set forth in rules adopted by the commission;
    11. Is not currently enrolled in an alternative program;
    12. Is subject to self-disclosure requirements regarding current participation in an alternative program; and
    13. Has a valid United States social security number.
      1. Only the home state may take adverse action against an advanced practice registered nurse’s license issued by the home state.
      2. For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct that occurred outside of the home state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
      3. Current, threatened, or reasonably anticipated litigation;
      4. Negotiation of contracts for the purchase or sale of goods, services, or real estate;
      5. Accusing any person of a crime or formally censuring any person;
      6. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
      7. Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;
      8. Disclosure of investigatory records compiled for law enforcement purposes;
      9. Disclosure of information related to any reports prepared by or on behalf of the commission for the purpose of investigation of compliance with this compact; or
      10. Matters specifically exempted from disclosure by federal or state statute.
    14. Provide and receive information from, and to cooperate with, law enforcement agencies;
    15. Adopt and use an official seal; and
    16. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of advanced practice registered nurse licensure and practice.
      1. Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission; and
      2. Provide remedial training and specific technical assistance regarding the default.

ARTICLE II — DEFINITIONS

As used in this compact:

1. “Advanced practice registered nurse” means a registered nurse who has gained additional specialized knowledge, skills, and experience through a program of study recognized or defined by the Interstate Commission of Advanced Practice Registered Nurse Compact Administrators (“commission”), and who is licensed to perform advanced nursing practice. An advanced practice registered nurse is licensed in an advanced practice registered nurse role that is congruent with an advanced practice registered nurse educational program, certification, and commission rules.

2. “Advanced practice registered nurse licensure” means the regulatory mechanism used by a party state to grant legal authority to practice as an advanced practice registered nurse.

ARTICLE III — GENERAL PROVISIONS AND JURISDICTION

1. A state must implement procedures for considering the criminal history records of applicants for initial advanced practice registered nurse licensure or advanced practice registered nurse licensure by endorsement. Such procedures must include the submission of fingerprints or other biometric-based information by advanced practice registered nurse applicants for the purpose of obtaining an applicant’s criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records.

2. Each party state shall require an applicant to satisfy the following advanced practice registered nurse uniform licensure requirements to obtain or retain a multistate license in the home state:

a. Meets the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws;

b. (1) Has completed an accredited graduate-level education program that prepares the applicant for one of the four recognized roles and population foci; or

(2) Has completed a foreign advanced practice registered nurse education program for one of the four recognized roles and population foci that:

  1. Has been approved by the authorized accrediting body in the applicable country; and
  2. Has been verified by an independent credentials review agency to be comparable to a licensing board-approved advanced practice registered nurse education program;

3. An advanced practice registered nurse issued a multistate license must be licensed in an approved role and at least one approved population focus.

4. An advanced practice registered nurse multistate license issued by a home state to a resident in that state will be recognized by each party state as authorizing the advanced practice registered nurse to practice as an advanced practice registered nurse in each party state, under a multistate licensure privilege, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.

5. Nothing in this compact shall affect the requirements established by a party state for the issuance of a single-state license, except that an individual may apply for a single-state license, instead of a multistate license, even if otherwise qualified for the multistate license. However, the failure of such an individual to affirmatively opt for a single-state license may result in the issuance of a multistate license.

6. Issuance of an advanced practice registered nurse multistate license must include prescriptive authority for noncontrolled prescription drugs.

7. For each state in which an advanced practice registered nurse seeks authority to prescribe controlled substances, the advanced practice registered nurse shall satisfy all requirements imposed by such state in granting and renewing such authority.

8. An advanced practice registered nurse issued a multistate license may assume responsibility and accountability for patient care independent of any supervisory or collaborative relationship. This authority may be exercised in the home state and in any remote state in which the advanced practice registered nurse exercises a multistate licensure privilege.

9. All party states are authorized, in accordance with state due process laws, to take adverse action against an advanced practice registered nurse’s multistate licensure privilege such as revocation, suspension, probation, or any other action that affects an advanced practice registered nurse’s authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such action, it promptly shall notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the home state of any such actions by remote states.

10. Except as otherwise expressly provided in this compact, an advanced practice registered nurse practicing in a party state shall comply with the state practice laws of the state in which the client is located at the time service is provided. Advanced practice registered nurse practice is not limited to patient care, but includes all advanced nursing practice as defined by the state practice laws of the party state in which the client is located. Advanced practice registered nurse practice in a party state under a multistate licensure privilege subjects the advanced practice registered nurse to the jurisdiction of the licensing board, the courts, and the laws of the party state in which the client is located at the time service is provided.

11. Except as otherwise expressly provided in this compact, this compact does not affect additional requirements imposed by states for advanced practice registered nursing. However, a multistate licensure privilege to practice registered nursing granted by a party state must be recognized by other party states as satisfying any state law requirement for registered nurse licensure as a precondition for authorization to practice as an advanced practice registered nurse in that state.

12. Individuals not residing in a party state shall continue to be able to apply for a party state’s single-state advanced practice registered nurse license as provided under the laws of each party state. However, the single-state license granted to these individuals will not be recognized as granting the privilege to practice as an advanced practice registered nurse in any other party state.

ARTICLE IV — APPLICATIONS FOR ADVANCED PRACTICE REGISTERED NURSE LICENSURE IN A PARTY STATE

1. Upon application for an advanced practice registered nurse multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held or is the holder of a licensed practical/vocational nursing license, a registered nursing license, or an advanced practice registered nurse license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant, and whether the applicant is currently participating in an alternative program.

2. An advanced practice registered nurse may hold a multistate advanced practice registered nurse license, issued by the home state, in only one party state at a time.

3. If an advanced practice registered nurse changes primary state of residence by moving between two party states, the advanced practice registered nurse shall apply for advanced practice registered nurse licensure in the new home state, and the multistate license issued by the prior home state must be deactivated in accordance with applicable commission rules.

a. The advanced practice registered nurse may apply for licensure in advance of a change in primary state of residence.

b. A multistate advanced practice registered nurse license may not be issued by the new home state until the advanced practice registered nurse provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate advanced practice registered nurse license from the new home state.

4. If an advanced practice registered nurse changes primary state of residence by moving from a party state to a nonparty state, the advanced practice registered nurse multistate license issued by the prior home state converts to a single-state license, valid only in the former home state.

ARTICLE V — ADDITIONAL AUTHORITIES INVESTED IN PARTY STATE LICENSING BOARDS

1. In addition to the other powers conferred by state law, a licensing board may:

a. Take adverse action against an advanced practice registered nurse’s multistate licensure privilege to practice within that party state.

b. Issue cease and desist orders or impose an encumbrance on an advanced practice registered nurse’s authority to practice within that party state.

c. Complete any pending investigations of an advanced practice registered nurse who changes primary state of residence during the course of such investigations. The licensing board also may take any appropriate action and promptly shall report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the new home state of any such actions.

d. Issue subpoenas for both hearings and investigations which require the attendance and testimony of witnesses, as well as, the production of evidence. Subpoenas issued by a party state licensing board for the attendance and testimony of witnesses and the production of evidence from another party state must be enforced in the latter state by any court of competent jurisdiction, according to that court’s practice and procedure in considering subpoenas issued in its own proceedings. The issuing licensing board shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state in which the witnesses and evidence are located.

e. Obtain and submit, for an advanced practice registered nurse licensure applicant, fingerprints or other biometric-based information to the federal bureau of investigation for criminal background checks, receive the results of the federal bureau of investigation record search on criminal background checks and use the results in making licensure decisions.

f. If otherwise permitted by state law, recover from the affected advanced practice registered nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that advanced practice registered nurse.

g. Take adverse action based on the factual findings of another party state, if the licensing board follows its own procedures for taking such adverse action.

2. If adverse action is taken by a home state against an advanced practice registered nurse’s multistate licensure, the privilege to practice in all other party states under a multistate licensure privilege must be deactivated until all encumbrances have been removed from the advanced practice registered nurse’s multistate license. All home state disciplinary orders that impose adverse action against an advanced practice registered nurse’s multistate license must include a statement that the advanced practice registered nurse’s multistate licensure privilege is deactivated in all party states during the pendency of the order.

3. This compact does not override a party state’s decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any advanced practice registered nurse for the duration of the advanced practice registered nurse’s participation in an alternative program.

ARTICLE VI — COORDINATED LICENSURE INFORMATION SYSTEM AND EXCHANGE INFORMATION

1. All party states shall participate in a coordinated licensure information system of all advanced practice registered nurses, licensed registered nurses, and licensed practical/vocational nurses. This system includes information on the licensure and disciplinary history of each advanced practice registered nurse, as submitted by party states, to assist in the coordinated administration of advanced practice registered nurse licensure and enforcement efforts.

2. The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection, and exchange of information under this compact.

3. All licensing boards promptly shall report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications (with the reasons for such denials), and advanced practice registered nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic and confidential under state law.

4. Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

5. Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board may not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

6. Any information contributed to the coordinated licensure information system which is subsequently required to be expunged by the laws of the party state contributing the information must be removed from the coordinated licensure information system.

7. The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state, which must include, at a minimum:

a. Identifying information;

b. Licensure data;

c. Information related to alternative program participation information; and

d. Other information that may facilitate the administration of this compact, as determined by commission rules.

8. The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

ARTICLE VII — ESTABLISHMENT OF THE INTERSTATE COMMISSION OF ADVANCED PRACTICE REGISTERED NURSE COMPACT ADMINISTRATION

1. The party states hereby create and establish a joint public agency known as the interstate commission of advanced practice registered nurse compact administrators.

a. The commission is an instrumentality of the party states.

b. Venue is proper, and judicial proceedings by or against the commission must be brought solely and exclusively, in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

c. This compact may not be construed to be a waiver of sovereign immunity.

2. Membership, voting, and meetings.

a. Each party state must have and be limited to one administrator. The head of the state licensing board or designee is the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the law of the state from which the administrator is appointed. Any vacancy occurring in the commission must be filled in accordance with the laws of the party state in which the vacancy exists.

b. Each administrator is entitled to one vote with regard to the promulgation of rules and creation of bylaws and otherwise must have an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator’s participation in meetings by telephone or other means of communication.

c. The commission shall meet at least once during each calendar year. Additional meetings must be held as set forth in the bylaws or rules of the commission.

d. All meetings are open to the public, and public notice of meetings must be given in the same manner as required under the rulemaking provisions in article VIII.

e. The commission may convene in a closed, nonpublic meeting if the commission must discuss:

(1) Noncompliance of a party state with its obligations under this compact;

(2) The employment, compensation, discipline, or other personnel matters, practices, or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

f. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons for those actions, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

3. By a majority vote of the administrators, the commission shall prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

a. Establishing the fiscal year of the commission;

b. Providing reasonable standards and procedures:

(1) For the establishment and meetings of other committees; and

(2) Governing any general or specific delegation of any authority or function of the commission;

c. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings, and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission shall make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed;

d. Establishing the titles, duties, and authority and reasonable procedures for the election of the officers of the commission;

e. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws exclusively govern the personnel policies and programs of the commission; and

f. Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of this compact after the payment and reserving of all of its debts and obligations.

4. The commission shall publish its bylaws and rules, and any amendments to the bylaws and rules, in a convenient form on the website of the commission.

5. The commission shall maintain its financial records in accordance with the bylaws.

6. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

7. The commission may:

a. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules have the force and effect of law and are binding in all party states;

b. Bring and prosecute legal proceedings or actions in the name of the commission. However, the standing of any licensing board to sue or be sued under applicable law may not be affected;

c. Purchase and maintain insurance and bonds;

d. Borrow, accept, or contract for services of personnel, including employees of a party state or nonprofit organizations;

e. Cooperate with other organizations that administer state compacts related to the regulation of nursing, including sharing administrative or staff expenses, office space, or other resources;

f. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

g. Accept any and all appropriate donations, grants, and gifts of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same. However, at all times the commission shall strive to avoid any appearance of impropriety or conflict of interest;

h. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve, or use, any property, whether real, personal, or mixed. However, at all times the commission shall strive to avoid any appearance of impropriety;

i. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed;

j. Establish a budget and make expenditures;

k. Borrow money;

l. Appoint committees, including advisory committees comprised of administrators, state nursing regulators, state legislators, or their representatives, and consumer representatives, and other such interested persons;

m. Issue advisory opinions;

8. Financing of the commission.

a. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

b. The commission may also levy on and collect an annual assessment from each party state to cover the cost of its operations, activities, and staff its annual budget as approved each year. The aggregate annual assessment amount, if any, must be allocated based upon a formula to be determined by the commission, which shall promulgate a rule that is binding upon all party states.

c. The commission may not incur obligations of any kind before securing the funds adequate to meet the same, nor may the commission pledge the credit of any of the party states, except by, and with the authority of, such party state.

d. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission must be audited yearly by a certified or licensed public accountant, and the report of the audit must be included in and become part of the annual report of the commission.

9. Qualified immunity, defense, and indemnification.

a. The administrators, officers, executive director, employees, and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against which the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties, or responsibilities. However, this subdivision may not be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

b. The commission shall defend any administrator, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against which the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that nothing herein may be construed to prohibit that person from retaining that person’s own counsel and the actual or alleged act, error, or omission may not result from that person’s intentional, willful, or wanton misconduct.

c. The commission shall indemnify and hold harmless any administrator, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, if the actual or alleged act, error, or omission did not result from the intentional, willful, or wanton misconduct of that person.

ARTICLE VIII — RULEMAKING

1. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted thereunder. Rules and amendments become binding as of the date specified in each rule or amendment and have the same force and effect as provisions of this compact.

2. Rules or amendments to the rules must be adopted at a regular or special meeting of the commission.

3. Before promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

a. On the website of the commission; and

b. On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

4. The notice of proposed rulemaking must include:

a. The proposed time, date, and location of the meeting at which the rule will be considered and voted upon;

b. The text of the proposed rule or amendment, and the reason for the proposed rule;

c. A request for comments on the proposed rule from any interested person; and

d. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

5. Before adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which must be made available to the public.

6. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

7. The commission shall publish the place, time, and date of the scheduled public hearing.

a. Hearings must be conducted in a manner providing each person that wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings must be recorded, and a copy must be made available upon request.

b. This section may not be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

8. If no one appears at the public hearing, the commission may proceed with promulgation of the proposed rule.

9. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

10. By majority vote of all administrators, the commission shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

11. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing. However, the usual rulemaking procedures provided in this compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

a. Meet an imminent threat to public health, safety, or welfare;

b. Prevent a loss of commission or party state funds; or

c. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.

12. The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision may be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge must be made in writing, and delivered to the commission, before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE IX — OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT

1. Oversight.

a. Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact’s purposes and intent.

b. The commission is entitled to receive service of process in any proceeding that may affect the powers, responsibilities, or actions of the commission, and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.

2. Default, technical assistance, and termination.

a. If the commission determines that a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

b. If a state in default fails to cure the default, the defaulting state’s membership in this compact may be terminated upon an affirmative vote of a majority of the administrators, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

c. Termination of membership in this compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor of the defaulting state and to the executive officer of the defaulting state’s licensing board, the defaulting state’s licensing board, and each of the party states.

d. A state whose membership in this compact has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

e. The commission may not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated, unless agreed upon in writing between the commission and the defaulting state.

f. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party must be awarded all costs of such litigation, including reasonable attorneys’ fees.

3. Dispute resolution.

a. Upon request by a party state, the commission shall attempt to resolve disputes related to the compact that arise among party states and between party and nonparty states.

b. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

c. If the commission cannot resolve disputes among party states arising under this compact:

(1) The party states may submit the issues in dispute to an arbitration panel, which will be comprised of individuals appointed by the compact administrator in each of the affected party states and an individual mutually agreed upon by the compact administrators of all the party states involved in the dispute.

(2) The decision of a majority of the arbitrators is final and binding.

4. Enforcement.

a. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

b. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorneys’ fees.

c. The remedies herein are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE X — EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT

1. This compact comes into limited effect at such time as this compact has been enacted into law in seven party states for the sole purpose of establishing and convening the commission to adopt rules relating to its operation.

2. Any state that joins this compact after the commission’s initial adoption of the advanced practice registered nurse uniform licensure requirements are subject to all rules that have been previously adopted by the commission.

3. Any party state may withdraw from this compact by enacting a statute repealing the same. A party state’s withdrawal does not take effect until six months after enactment of the repealing statute.

4. A party state’s withdrawal or termination does not affect the continuing requirement of the withdrawing or terminated state’s licensing board to report adverse actions and significant investigations occurring before the effective date of such withdrawal or termination.

5. This compact may not be construed to invalidate or prevent any advanced practice registered nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that does not conflict with the provisions of this compact.

6. This compact may be amended by the party states. An amendment to this compact does not become effective and binding upon any party state until it is enacted into the laws of all party states.

7. Representatives of nonparty states to this compact must be invited to participate in the activities of the commission, on a nonvoting basis, before the adoption of this compact by all states.

ARTICLE XI — CONSTRUCTION AND SEVERABILITY

This compact must be liberally construed so as to effectuate the purposes of this compact. The provisions of this compact are severable, and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or if the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance is not affected thereby. If this compact is held to be contrary to the constitution of any party state, this compact remains in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

CHAPTER 43-13 Optometrists

43-13-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota state board of optometry.
  2. “Diagnosis and treatment” means the determination, interpretation, and treatment of any visual, muscular, neurological, or anatomical anomaly of the eye which may be aided, relieved, or corrected through visual training procedures or through the use of lenses, prisms, filters, ophthalmic instruments, pharmaceutical agents, or combinations thereof, held either in contact with the eye, or in frames or mountings, as further authorized by this chapter. Laser therapy and the use of invasive surgery are not permitted under this chapter, except superficial foreign bodies may be removed and primary care procedures may be performed.
  3. “Optometry” means a primary health care profession whose practitioners are engaged in the evaluation of disorders of the human eye and the examination, diagnosis, and treatment thereof, together with its appendages.
  4. “Pharmaceutical agent” means diagnostic pharmaceutical agents or therapeutic pharmaceutical agents. The term includes nonscheduled pharmaceutical agents, except for acetaminophen with thirty milligrams of codeine, that have documented use in the treatment of ocular-related disorders or diseases. As used in this subsection:
    1. “Diagnostic pharmaceutical agents” means pharmaceutical agents administered for the evaluation and diagnosis of disorders of the human eye including anesthetics, mydriatics, myotics, cycloplegics, diagnostic dyes, diagnostic stains, and pharmaceutical agents to evaluate abnormal pupil responses.
    2. “Therapeutic pharmaceutical agents” includes topically administered and prescribed pharmaceutical agents for treatment of ocular-related disorders or disease, locally administered pharmaceutical agents for primary eye care procedures, oral anti-infective agents, oral antihistaminic agents, and oral analgesics for the treatment of ocular-related disorders or diseases.
  5. “Practicing optometry” means:
    1. Displaying a sign or in any way advertising as an optometrist.
    2. Employing any means for the measurement of the powers of vision or the adaptation of lenses for the aid thereof.
    3. Engaging in any manner in the practice of optometry.

Source:

S.L. 1903, ch. 130, §§ 1, 2; 1905, ch. 142, §§ 1, 2; R.C. 1905, §§ 324, 325; C.L. 1913, §§ 524, 525; S.L. 1923, ch. 261; 1925 Supp., §§ 524, 525; R.C. 1943, § 43-1301; S.L. 1955, ch. 284, § 1; 1957 Supp., § 43-1301; S.L. 1979, ch. 465, § 2; 1987, ch. 517, § 1; 1997, ch. 370, § 1; 2009, ch. 364, § 1.

Cross-References.

Optometrists need not have physician’s license, see N.D.C.C. § 43-17-02.

Collateral References.

What constitutes practice of “optometry” 82 A.L.R.4th 816.

Medical malpractice: when limitations period begins to run on claim for optometrist’s malpractice, 70 A.L.R.4th 600.

43-13-02. Persons exempt from provisions of chapter.

The provisions of this chapter do not apply to the following persons:

  1. Persons who sell spectacles, eyeglasses, or other articles of merchandise without attempting to practice optometry.
  2. Student interns who are currently enrolled in an optometry school or college accredited by the accreditation council on optometric education of the American optometric association, or its successor agency, or who have graduated no more than three months prior, and are under the immediate and direct supervision of a licensed optometrist.
  3. Physicians and surgeons licensed under chapter 43-17.

Source:

S.L. 1903, ch. 130, § 16; 1905, ch. 142, § 7; R.C. 1905, § 339; C.L. 1913, § 539; S.L. 1923, ch. 261; 1925 Supp., § 539; R.C. 1943, § 43-1302; S.L. 1947, ch. 300, § 1; 1957 Supp., § 43-1302; S.L. 1989, ch. 520, § 1; 2007, ch. 362, § 1.

43-13-03. North Dakota state board of optometry — Members — Appointment — Qualifications — Terms of office — Oath — Vacancies.

The North Dakota state board of optometry consists of seven members appointed by the governor for a term of five years each, with their terms of office so arranged that at least one term expires on June thirtieth of each year. Five of the members of the board must be resident licensed optometrists who have an established optometric practice in this state and are engaged in the actual practice of optometry in this state. Each member of the board shall qualify by taking the oath required of civil officers and filing the same with the secretary of the board. A member of the board shall hold office until a successor is appointed and qualified. A vacancy on the board must be filled by appointment by the governor for the remainder of the unexpired term.

Source:

S.L. 1903, ch. 130, § 3; R.C. 1905, § 326; C.L. 1913, § 526; S.L. 1923, ch. 261; 1925 Supp., § 526; R.C. 1943, § 43-1303; S.L. 1981, ch. 441, § 1; 1989, ch. 520, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-13-04. Officers of board — Election — Term of office — Duty of president.

The members of the board shall elect from among their own number a president and a secretary. Such officers shall hold office for the term of one year, and until their successors are elected and qualified. The president of the board shall preside at all meetings of the board and shall sign on behalf of the members all licenses or other instruments issued by the board. Such licenses or instruments must be attested by the secretary.

Source:

S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1304; S.L. 1989, ch. 520, § 3.

43-13-05. Secretary of board — Duties — Record — Custodian of fees — Report.

The secretary of the board, or the secretary’s designee, has the following duties:

  1. Keep a full record of the proceedings of the board.
  2. Be custodian of all fees coming into the possession of the board.
  3. At such times as may be required by the board, furnish a complete statement of receipts and disbursements under oath, together with vouchers, receipts, and such other evidence of the receipts and disbursements as may be required by the board.

Source:

S.L. 1903, ch. 130, §§ 4, 11; 1905, ch. 142, § 3; R.C. 1905, §§ 327, 334; C.L. 1913, §§ 527, 534; S.L. 1923, ch. 261; 1925 Supp., §§ 527, 532; R.C. 1943, § 43-1305; S.L. 2007, ch. 362, § 2.

43-13-06. Secretary of board — Bond.

The secretary of the board, or the secretary’s designee in the event the duties have been delegated to another, must be bonded for the faithful discharge of duties in such amount as may be prescribed by the board.

Source:

S.L. 1903, ch. 130, §§ 4, 11; 1905, ch. 142, § 3; R.C. 1905, §§ 327, 334; C.L. 1913, §§ 527, 534; S.L. 1923, ch. 261; 1925 Supp., §§ 527, 532; R.C. 1943, § 43-1306; S.L. 1975, ch. 258, § 21; 1989, ch. 520, § 4; 2007, ch. 362, § 3.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-13-07. Compensation and expenses of board members.

A member of the board shall receive as compensation for each day the member actually is engaged in performing the duties of office a per diem as established by the board, mileage and travel expenses as are provided for in section 54-06-09, and additional allowance for other necessary expenses incurred in attending said meeting not to exceed five dollars per day. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1903, ch. 130, § 11; R.C. 1905, § 334; C.L. 1913, § 534; S.L. 1923, ch. 261; 1925 Supp., § 530; R.C. 1943, § 43-1307; S.L. 1955, ch. 284, § 2; 1957 Supp., § 43-1307; S.L. 1967, ch. 349, § 1; 1971, ch. 510, § 8; 1981, ch. 441, § 2; 1989, ch. 520, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-13-08. Secretary of board — Compensation.

The secretary of the board shall receive for clerical expenses and other expenses of the board an allowance, and a salary or other compensation, as the board shall determine.

Source:

S.L. 1923, ch. 261; 1925 Supp., § 531; R.C. 1943, § 43-1308; S.L. 1955, ch. 284, § 3; 1957 Supp., § 43-1308; S.L. 1967, ch. 349, § 2; 1981, ch. 441, § 3.

43-13-09. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1903, ch. 130, § 11; R.C. 1905, § 334; C.L. 1913, § 534; S.L. 1923, ch. 261; 1925 Supp., § 534; R.C. 1943, § 43-1309; S.L. 1963, ch. 346, § 41; 1973, ch. 403, § 31; 1975, ch. 466, § 33; 1995, ch. 350, § 32.

43-13-10. Meetings of board — Quorum — What constitutes.

The board shall meet at least once in each year at a place it designates, and in addition thereto whenever and wherever the president and the secretary, for proper cause, call a meeting. Four members of the board in actual attendance at any meeting constitute a quorum for the transaction of business.

Source:

S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1310; S.L. 1981, ch. 441, § 4.

43-13-11. Records of board.

The record of the proceedings of the board kept by the secretary, or the secretary’s designee, at all reasonable times must be open to public inspection. The record also must contain a registry list of all persons licensed by the board, together with renewals and revocations of licenses. The record constitutes the official registry of all persons licensed to practice optometry in this state.

Source:

S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1311; S.L. 1989, ch. 520, § 6; 2007, ch. 362, § 4.

43-13-12. Records of board as evidence.

A true copy of all records of the board, or any part thereof, is admissible in evidence without further proof of authenticity when accompanied by the certificate of the secretary of the board that the same is a true copy of the original record on file in the office of the secretary of the board.

Source:

S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1312; S.L. 1989, ch. 520, § 7.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-13-13. Duties of board.

The board has the following duties:

  1. To enforce the provisions and carry out the purposes of this chapter.
  2. To make and enforce such rules and regulations consistent with law as may be necessary for the proper performance of its duties; the effective enforcement of this chapter; the reasonable regulation of the profession of optometry and the practice thereof by persons licensed under this chapter; and to protect the health, welfare, and safety of the citizens of this state.
  3. To proceed in the courts of this state by injunction when considered necessary to restrain any violation of this chapter.

Source:

S.L. 1903, ch. 130, §§ 3, 4; 1905, ch. 142, § 3; R.C. 1905, §§ 326, 327; C.L. 1913, §§ 526, 527; S.L. 1923, ch. 261; 1925 Supp., §§ 526, 527; R.C. 1943, § 43-1313; S.L. 1947, ch. 300, § 2; 1957 Supp., § 43-1313; S.L. 1989, ch. 520, § 8.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-13-13.1. Board may authorize use of ocular diagnostic pharmaceutical agents — Training required for certification — Board may adopt rules. [Repealed]

Repealed by S.L. 1987, ch. 517, § 3.

43-13-13.2. Practice of optometry — Certification requirements — Notification.

  1. Any person engaged in visual training procedures or who employs or prescribes lenses, prisms, filters, ophthalmic instruments, or combinations thereof, held either in contact with the eye, or in frames or mounting, to aid, relieve, or correct any visual or ocular anomaly, or holds out as being able to do so, is deemed to be engaged in the practice of optometry.
  2. Before any optometrist may prescribe and administer pharmaceutical agents in the treatment and management of ocular diseases, the optometrist must first be certified or qualify for certification in the use of diagnostic pharmaceutical agents. For additional certification to prescribe and administer pharmaceutical agents in the treatment and management of ocular disease, the board shall require at least seventy-six hours of didactic instruction and twenty-four hours of clinical application of pharmaceutical agents for the treatment and management of ocular diseases. The course for therapeutic certification must be provided by an institution accredited by a regional or professional accrediting organization that is recognized and approved by the United States department of education or the council on postsecondary accreditation.
  3. An optometrist may not dispense therapeutic pharmaceutical agents, except an optometrist may:
    1. Provide a patient a drug sample at no cost to the patient; or
    2. Sell contact lenses or ophthalmic devices that are classified by the federal food and drug administration as a drug.
  4. The board shall provide the board of pharmacy upon request a list of licensed optometrists certified in the use of pharmaceutical agents.

Source:

S.L. 1987, ch. 517, § 2; 2007, ch. 362, § 5; 2009, ch. 364, § 2.

43-13-13.3. Standard of care — When consultation with physician required.

  1. An optometrist certified by the board in the use of pharmaceutical agents as provided in this chapter must be held to the same standard of care in the use of such agents as are physicians licensed by the North Dakota board of medicine.
  2. Any optometrist authorized by the board to use pharmaceutical agents shall consult with a physician duly licensed to practice medicine when any diseased or pathological conditions of the eye do not respond to treatment. The consultation must be documented in the patient’s record.

Source:

S.L. 1987, ch. 517, § 2; 1997, ch. 370, § 2; 2001, ch. 374, § 1; 2015, ch. 297, § 14, effective August 1, 2015.

43-13-14. Members of board to administer oaths — Seal of board.

Any member of the board, upon being duly designated by the board, or a majority thereof, may administer oaths or take testimony concerning any matter within the jurisdiction of the board. The board may adopt a seal.

Source:

S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1314.

43-13-15. Unlawful to practice without license — Sale of glasses — Regulations.

No person may practice optometry in this state unless the person first obtains a license and complies with the requirements of this chapter. Eyeglasses, spectacles, and lenses may be vended as merchandise only:

  1. To dealers.
  2. From permanently located and established places of business in this state.

Any licensed optometrist, however, may fit and vend eyeglasses, spectacles, and lenses at any place in this state. Notwithstanding any other provision of law, it is unlawful for any person, or any entity other than a licensed optometrist or a licensed physician to dispense, fit, or prescribe to the public contact lenses, or any medical appliance having direct contact with the cornea of the eye.

Source:

S.L. 1903, ch. 130, § 2; 1905, ch. 142, § 2; R.C. 1905, § 325; C.L. 1913, § 525; S.L. 1923, ch. 261; 1925 Supp., § 525; R.C. 1943, § 43-1315; S.L. 1989, ch. 520, § 9.

Collateral References.

Validity of governmental regulation of optometry, 22 A.L.R.2d 939.

Practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts without license as a separate or continuing offense, 99 A.L.R.2d 654.

Contact lenses: fitting of contact lenses as practice of optometry, 77 A.L.R.3d 817.

43-13-16. Examination required — When given.

Before any person is granted a license to practice optometry in this state, the person must pass an examination required by the board. The examination may be conducted at such times and places as are prescribed by the board.

Source:

S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1316; S.L. 1981, ch. 441, § 5; 1989, ch. 520, § 10; S.L. 1993, ch. 421, § 1.

43-13-17. Application for licensure — Contents — Educational requirements — Fee.

Any person desiring to take the examination for or to secure a license to practice optometry in this state shall file with the secretary of the board a written application in the form prescribed by the board. An application for admission by examination must be filed at least fifteen days before the date of the examination. The applicant also shall furnish satisfactory proof that the applicant:

  1. Is at least eighteen years of age;
  2. Is a person of good moral character; and
  3. Is a graduate of an optometry school or college accredited by the council on optometric education.

The applicant shall pay to the secretary of the board a registration fee of a reasonable sum fixed by the board.

Source:

S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1317; S.L. 1955, ch. 284, § 4; 1957, ch. 299, § 1; 1957 Supp., § 43-1317; S.L. 1967, ch. 349, § 3; 1973, ch. 120, § 45; 1985, ch. 478, § 1; 1989, ch. 520, § 11; 1993, ch. 421, § 2; 1999, ch. 377, § 1.

43-13-18. Licensure by endorsement.

An applicant may secure a license to practice optometry in this state without taking all required examinations as follows:

  1. Presentation of a certified copy or an original certificate of registration or license in good standing issued to the applicant by another state where the requirements for license are equivalent to those of this state;
  2. Payment of a reasonable sum fixed by the board; and
  3. Unless waived by the board, all applicants for licensure by endorsement must:
    1. Apply for the highest level of therapeutic licensure in this state.
    2. Be current in the continuing education requirements of their current state of licensure.
    3. Pass a North Dakota state optometry law examination as required by the board to be given at such times and places as are prescribed by the board.
    4. Have a minimum of four years of practice, federal service, or teaching experience as a licensed optometrist prior to making application.
    5. Have not committed any act that would constitute grounds for disciplinary action under this chapter or the rules and regulations of the board.
    6. Submit to an oral interview before such persons and at a time and place as prescribed by the board.

The board may give or require a practical examination of the applicant if it is deemed necessary.

Source:

S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1318; S.L. 1989, ch. 520, § 12; S.L. 1993, ch. 421, § 3; 1999, ch. 377, § 2.

43-13-19. License — When issued — Fee.

Every applicant for a license to practice optometry in this state who meets the standards required for licensure, including successfully passing the required examination, must be licensed upon payment to the secretary of the board of a reasonable sum fixed by the board.

Source:

S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1319; S.L. 1967, ch. 349, § 4; 1989, ch. 520, § 13; 1993, ch. 421, § 4; 2019, ch. 349, § 1, effective July 1, 2019.

43-13-20. Term of license — Renewal — Annual license fee — Continuing educational requirements.

A license to practice optometry in the state may be issued for one year only. A license may be renewed by submitting to the board, during December of each year, the license fee for the following year and satisfactory proof the licensee has met all continuing education conditions set by the board. The license fee for each year must be determined annually by the board and be a reasonable sum. This section does not require an applicant to become a member of the North Dakota optometric association or any other association of optometrists.

Source:

S.L. 1903, ch. 130, § 12; R.C. 1905, § 335; C.L. 1913, § 535; S.L. 1923, ch. 261; 1925 Supp., § 535; R.C. 1943, § 43-1320; S.L. 1955, ch. 284, § 5; 1957 Supp., § 43-1320; S.L. 1967, ch. 349, § 5; 1971, ch. 435, § 1; 1985, ch. 478, § 2; 1989, ch. 520, § 14; 1993, ch. 421, § 5; 2007, ch. 362, § 6; 2019, ch. 349, § 2, effective July 1, 2019.

43-13-21. License to be displayed.

Every person to whom a license to practice optometry in this state is issued shall display the same in a conspicuous place in the office where the practice of optometry is conducted.

Source:

S.L. 1903, ch. 130, § 10; R.C. 1905, § 333; C.L. 1913, § 533; S.L. 1923, ch. 261; 1925 Supp., § 533; R.C. 1943, § 43-1321; 1989, ch. 520, § 15.

43-13-21.1. Disciplinary powers of the board.

  1. The board may conduct investigations for the purpose of determining whether violations of this chapter or grounds for disciplining licensees exist. The board may establish an investigative panel to conduct an investigation under this section and may subpoena records.
  2. A complaint, response, and any record received by the board during the course of the board’s investigation into a complaint are exempt records, as defined in section 44-04-17.1, until the board concludes whether to pursue disciplinary action.
  3. In addition to any other disciplinary actions available to the board, the board may take one or more of the following actions against an optometrist who violates the provisions of this chapter or the board’s rules:
    1. Letters of concern.
    2. Letters of censure.
    3. Reprimands.
    4. Fines, including costs and attorney’s fees.
    5. Stipulations, limitations, and conditions relating to practice such as additional education and counseling.
    6. Probation.
    7. Suspension of the license.
    8. Revocation of the license.
  4. The board may require a licensee to be examined on optometric knowledge and skills, if the board has just cause to believe the licensee may be so deficient in knowledge and skills as to jeopardize the health, welfare, and safety of the citizens of this state.
  5. The board may require a physical or mental evaluation as provided in section 43-13-26.1 if it has reason to believe the licensee’s physical or mental condition may adversely affect the public welfare.
  6. Disciplinary action must occur through an administrative hearing conducted in accordance with chapter 28-32.

Source:

S.L. 1989, ch. 520, § 21; 2019, ch. 349, § 3, effective July 1, 2019.

43-13-22. License — When revoked.

  1. After an administrative hearing conducted in accordance with chapter 28-32, the board may restrict, revoke, or suspend any license granted by it under this chapter when the board determines the holder of the license:
    1. Has violated any provisions of this chapter, the rules and regulations of the board, or committed an offense determined by the board to have a direct bearing upon a holder’s ability to serve the public as an optometrist, or when the board determines, following conviction of a holder for any other offense, that the holder is not sufficiently rehabilitated under section 12.1-33-02.1;
    2. Has sold or distributed any drug legally classified as a controlled substance or as an addictive or dangerous drug;
    3. Has been addicted to the excessive use of intoxicating liquor or a controlled substance for at least six months immediately prior to the filing of the charges;
    4. Is afflicted with any contagious or infectious disease;
    5. Is grossly incompetent to discharge the holder’s duties in connection with the practice of optometry;
    6. Has employed fraud, deceit, misrepresentation, or fraudulent advertising in the practice of optometry; or
    7. Is engaged in the practice of optometry by being directly or indirectly employed by any person other than a licensed optometrist, a physician licensed under chapter 43-17, a hospital, or a clinic operated by licensed optometrists or by licensed physicians.
  2. Any person whose license has been revoked or suspended may have the same reinstated upon satisfactory proof that the disqualification has ceased or that the disability has been removed and upon such conditions as established by the board.

Source:

S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1322; S.L. 1947, ch. 300, § 3; 1957 Supp., § 43-1322; S.L. 1977, ch. 130, § 28; 1989, ch. 520, § 16; 1993, ch. 421, § 6; 1997, ch. 370, § 3; 2007, ch. 362, § 7; 2019, ch. 349, § 4, effective July 1, 2019.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-13-23. Revocation of license — Notice. [Repealed]

Source:

S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1323; S.L. 1989, ch. 520, § 17; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-24. Revocation of license — Hearing — Procedure — Witnesses — Expenses. [Repealed]

Source:

S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1324; S.L. 1989, ch. 520, § 18; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-25. Determination of board constitutes revocation of license. [Repealed]

Source:

S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1325; 1989, ch. 520, § 19; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-26. Revocation of license — Appeal. [Repealed]

Source:

S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1326; S.L. 1989, ch. 520, § 20; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-26.1. Impaired optometrists.

After a hearing conducted pursuant to chapter 28-32, the board may restrict, suspend, or revoke the license of any licensed optometrist whose mental or physical ability to practice optometry with reasonable skill and safety is impaired.

  1. For the purpose of this section, “impairment” means the inability of a licensee to practice optometry with reasonable skill and safety by reason of:
    1. Mental illness; or
    2. Physical illness, including physical deterioration that adversely affects cognitive, motor, or perceptive skills.
  2. The board may, upon probable cause, require a licensee or applicant to submit to a mental or physical examination by appropriate health care providers designated by the board. The results of the examination are admissible in any hearing, despite any claim of privilege under any contrary rule or statute. Every person who receives a license to practice optometry or who files an application for a license to practice optometry is deemed to have given consent to submit to the admissibility of the results in any hearing. 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 deemed to be beyond the licensee’s control, the board may enter a final disciplinary order upon proper notice, hearing, and proof of such refusal.
  3. If the board finds, after examination and administrative hearing, that a licensee is impaired, it may take one or more of the following actions:
    1. Direct the licensee to submit to care, counseling, or treatment acceptable to the board; and
    2. Suspend, limit, or restrict the optometrist’s license for the duration of the impairment.
  4. Any licensee or applicant who is prohibited from practicing optometry under this section must be afforded an opportunity, at reasonable intervals, to demonstrate to the satisfaction of the board that the licensee or applicant can resume or begin the practice of optometry with reasonable skill and safety. Licensure may not be reinstated without the payment of the current license fee and may be subject to such reasonable restrictions as may be imposed by the board.

Source:

S.L. 1989, ch. 520, § 22; 2019, ch. 349, § 5, effective July 1, 2019.

43-13-27. Penalty.

Any person who violates any provision of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1903, ch. 130, § 14; R.C. 1905, § 337; C.L. 1913, § 537; S.L. 1923, ch. 261; 1925 Supp., § 537; R.C. 1943, § 43-1327; S.L. 1975, ch. 106, § 479.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Separate or continuing offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts without license as, 99 A.L.R.2d 654.

43-13-28. Prohibitions.

It is unlawful for any person who is not the holder of a license to practice optometry, to engage in the practice of optometry, directly or indirectly, by employing or hiring upon a salary, commission, or other profit-sharing arrangement a licensed optometrist except as permitted by the rules and regulations of the board. The provisions of this section do not apply to a physician licensed under chapter 43-17, a hospital, or a clinic operated by licensed optometrists or by licensed physicians.

Source:

S.L. 1947, ch. 300, § 4; R.C. 1943, § 43-1328; 1957 Supp., § 43-1328; S.L. 1989, ch. 520, § 23; S.L. 1993, ch. 54, § 106; 2007, ch. 362, § 8.

Cross-References.

Nonprofit corporations, see N.D.C.C. ch. 10-33.

Professional corporations, see N.D.C.C. ch. 10-31.

43-13-29. Prohibiting solicitation of sale of optical appliances and visual services by means of advertisement or otherwise. [Repealed]

Repealed by S.L. 1981, ch. 435, § 26.

43-13-30. Reports and testimony accepted — Nondiscrimination and freedom of choice of ocular practitioner.

The testimony and reports of an optometrist licensed to practice in this state must be received by any state, county, municipality, school district, or other public board, body, agency, institution, or official and by any private educational or other institution receiving public funds as qualified evidence with respect to any matter within the scope of the practice of optometry as defined in section 43-13-01; and no such board, body, agency, official, or institution may, in retaining and utilizing the professional services of ocular practitioners, discriminate between licensed practitioners of optometry and physicians or interfere with any individual’s right to free choice of ocular practitioner, when such professional services are within the scope of section 43-13-01. Nothing herein in any manner restricts the authority of any such board, body, agency, official, or institution from utilizing the services of a physician for examinations of the eyes or treatment of diseases of the eyes.

Section 43-13-13 applies in actions to correct any violations of this section.

Source:

S.L. 1967, ch. 350, § 1.

43-13-31. Discrimination in optometric services prohibited.

A person may not discriminate between licensed practitioners of optometry and physicians, or interfere with any individual’s right to free choice of ocular practitioner, with respect to the providing of professional services within the scope of section 43-13-01. If a health, accident or disability policy or insurance contract, or any other type of benefit or safety program specifically provides for the payment of optometric services within the scope of section 43-13-01, the payment must be made regardless of whether the service is performed by a physician or optometrist.

Source:

S.L. 1979, ch. 466, § 1; 1983, ch. 319, § 31; 1985, ch. 317, § 76; 1989, ch. 520, § 24.

43-13-32. Board immunity and privileged communications. [Repealed]

Source:

S.L. 1989, ch. 520, § 25; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

CHAPTER 43-14 Osteopaths [Repealed]

[Repealed by S.L. 1969, ch. 395, § 8]

CHAPTER 43-15 Pharmacists

43-15-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Administration” means the direct application of a drug to the body of a patient. The term includes:
    1. The emergency maintenance of a drug delivery device used in home infusion therapy by a qualified home pharmacist if nursing service is not available;
    2. Immunization and vaccination by injection of an individual who is at least three years of age upon an order by a practitioner authorized to prescribe such a drug or by written protocol with a physician or nurse practitioner and subsequently reported as a childhood immunization and other information if required to the state’s immunization information system pursuant to section 23-01-05.3;
    3. Provision of other drugs to an individual who is at least three years of age upon the order of a practitioner authorized to prescribe such a drug; and
    4. Provision of drugs to an individual receiving emergency services in a health care facility upon an order or by established written protocol.
  2. “Automated dispensing system” means a mechanical system that performs operations or activities, other than compounding or administration, relative to the storage, packaging, counting, labeling, and dispensing of medications and which collects, controls, and monitors all transaction information.
  3. “Board” means the state board of pharmacy.
  4. “Compounding” means the preparation, mixing, assembling, packaging, or labeling of a drug or device:
    1. As the result of a practitioner’s prescription drug order or initiative based on the practitioner, patient, and pharmacist relationship in the course of professional practice; or
    2. For the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale or dispensing.
  5. “Confidential information” means individually identifiable health information maintained by the pharmacist in the patient’s records or which is communicated to the patient as part of a patient counseling.
  6. “Deliver” or “delivery” means the actual, constructive, or attempted transfer of a drug or device from one person to another, whether or not for a consideration.
  7. “Device” means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component part or accessory, which is required under federal or North Dakota law to be prescribed by a practitioner and dispensed by a pharmacist.
  8. “Dispense” or “dispensing” means the preparation and delivery of a prescription drug, pursuant to a lawful order of a practitioner or a nurse licensed under chapter 43-12.1 who is authorized by the practitioner to orally transmit the order that has been reduced to writing in the patient’s record, in a suitable container appropriately labeled for subsequent administration to or use by a patient or other individual entitled to receive the prescription drug.
  9. “Distribute” means the delivery of a drug other than by dispensing or administering.
  10. “Drug” or “drugs” means:
    1. Articles recognized as drugs in the official United States pharmacopeia, official national formulary, official homeopathic pharmacopeia, other drug compendium, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal;
    3. Articles other than food intended to affect the structure or any function of the body of man or other animals; and
    4. Articles intended for use as a component of any articles specified in subdivision a, b, or c.
  11. “Drug regimen review” includes the following activities:
    1. Evaluation of the prescription drug orders and patient records for:
      1. Known allergies;
      2. Rational therapy-contraindications;
      3. Reasonable dose and route of administration; and
      4. Reasonable directions for use.
    2. Evaluation of the prescription drug orders and patient records for duplication of therapy.
    3. Evaluation of the prescription drug orders and patient records for interactions:
      1. Drug-drug;
      2. Drug-food;
      3. Drug-disease; and
      4. Adverse drug reactions.
    4. Evaluation of the prescription drug orders and patient records for proper utilization, including overutilization or underutilization, and optimum therapeutic outcomes.
  12. “Emergency pharmacy practice” means in the event a pharmacist receives a request for a prescription refill and the pharmacist is unable to obtain refill authorization from the prescriber, the pharmacist may dispense and bill using a pharmacist national provider identifier a one-time emergency refill of up to a thirty-day supply of the prescribed medication, provided that:
    1. The prescription is not for a controlled substance listed in schedule II;
    2. The pharmaceutical is essential to the maintenance of life or to the continuation of therapy;
    3. In the pharmacist’s professional judgment, the interruption of therapy might reasonably produce undesirable health consequences or may cause physical or mental discomfort;
    4. The pharmacist properly records the dispensing; and
    5. The dispensing pharmacist notifies the prescriber of the emergency dispensing within a reasonable time after the one-time emergency refill dispensing.
  13. “Labeling” means the process of preparing and affixing of a label to any drug container exclusive, however, of the labeling by a manufacturer, packer, or distributor of a nonprescription drug or commercially packaged legend drug or device. Any label shall include all information required by federal and North Dakota law or regulation.
  14. “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a device or a drug, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substances or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a drug by an individual for the individual’s own use or the preparation, compounding, packaging, or labeling of a drug:
    1. By a pharmacist or practitioner as an incident to dispensing or administering of a drug in the course of the person’s professional practice; or
    2. By a practitioner or by the practitioner’s authorization under supervision for the purpose of or as an incident to research, teaching, or chemical analysis and not for sale.
  15. “Manufacturer” means a person engaged in the manufacture of drugs in facilities located within North Dakota.
  16. “Medicine” means a drug or combination of drugs, used in treating disease in man or other animals.
  17. “Nonprescription drugs” means medicines or drugs which may be sold without a prescription and which are prepackaged for use by the consumer and labeled in accordance with the requirements of the statutes and regulations of this state and the federal government.
  18. “Original package” means the original carton, case, can, box, vial, bottle, or other receptacle, put up by the manufacturer or wholesaler or distributor, with label attached, making one complete package of the drug article.
  19. “Person” means an individual, corporation, limited liability company, partnership, association, or any other legal entity.
  20. “Pharmaceutical care” is the provision of drug therapy and other pharmaceutical patient care services intended to achieve outcomes related to the cure or prevention of a disease, elimination or reduction of a patient’s symptoms, or arresting or slowing of a disease process as defined in the rules of the board.
  21. “Pharmacist” means a person to whom the board has issued a license to practice the profession of pharmacy whose license has not expired or been suspended.
  22. “Pharmacy” or “drugstore” means every store or shop where drugs, medicines, or chemicals are dispensed, displayed for sale, or sold, at retail for medicinal purposes, or where prescriptions are compounded, and which is duly registered by the board.
  23. “Pharmacy technician” means a person registered by the board who is employed by a pharmacy to assist licensed pharmacists in the practice of pharmacy by performing specific tasks delegated by and under the immediate personal supervision and control of a licensed pharmacist, as permitted by the board.
  24. “Practice of pharmacy” means the interpretation, evaluation, and monitoring of prescription orders and patient drug therapy; the compounding, dispensing, labeling of drugs and devices except labeling by a manufacturer, packer, or distributor of nonprescription drugs and commercially packaged legend drugs and devices; the participation in drug selection, drug monitoring, drug administration, drug regimen review, the provision of these acts or services necessary as a primary health care provider of pharmaceutical care, and drug utilization evaluations; the proper and safe storage of drugs and devices and the maintenance of proper records for this storage; the responsibility for advising, consulting, and educating if necessary or if regulated, patients, public, and other health care providers on the rational, safe, and cost-effective use of drugs including therapeutic values, content, hazards, and appropriate use of drugs and devices; the participation in interpreting and applying pharmacokinetic data and other pertinent laboratory data to design safe and effective drug dosage regimens; if appropriate and if regulated, the participation in drug research either scientific or clinical as investigator or in collaboration with other investigators for the purposes of studying the effects of drugs on animals or human subjects, with other drugs or chemicals, and with drug delivery devices; emergency pharmacy practice; prescriptive practices as limited under this chapter; the performance of laboratory tests to provide pharmaceutical care services which are waived under the Federal Clinical Laboratory Improvement Act of 1988 [Pub. L. 100-578, section 2; 102 Stat. 2903; 42 U.S.C. 263 a et seq.], as amended; and the offering or performing of those acts, services, operations, or transactions necessary in the conduct, operation, management, and control of pharmacy.
  25. “Practitioner” means an individual licensed, registered, or otherwise authorized by the jurisdiction in which the individual is practicing to prescribe drugs in the course of professional practice.
  26. “Prescription” means any order for drugs or medical supplies, if such order is written or signed or transmitted by word of mouth, telephone, telegram, or other means of communication by a duly licensed physician, optometrist, dentist, veterinarian, or other practitioner, licensed by law to prescribe and administer such drugs or medical supplies intended to be filled, compounded, or dispensed by a pharmacist or any order for drugs or medical supplies transmitted orally by a nurse licensed under chapter 43-12.1 as written and signed by such a duly licensed physician, optometrist, dentist, veterinarian, or other practitioner.
  27. “Prescription drug or legend drug” means a drug which, under federal law is required, prior to being dispensed or delivered, to be labeled with one of the following:
    1. “Caution: Federal law prohibits dispensing without prescription”;
    2. “Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian”; or
    3. Rx only;
  28. “Public health issues” include immunizations, tobacco cessation, and other issues deemed appropriate by the board.
  29. “Radiopharmaceutical service” means, but is not limited to, the compounding, dispensing, labeling, and delivery of radiopharmaceuticals; the participation in radiopharmaceutical selection and radiopharmaceutical utilization reviews; the proper and safe storage and distribution of radiopharmaceuticals; the maintenance of radiopharmaceutical quality assurance; the responsibility for advising, where necessary or where regulated, of therapeutic values, hazards, and use of radiopharmaceuticals; and the offering or performing of those acts, services, operations, or transactions necessary in the conduct, operation, management, and control of radiopharmaceuticals.
  30. “Wholesaler” means a person with facilities located in this state who buys for resale and distribution to persons other than consumers.

Compounding also includes the preparation of drugs or devices in anticipation of prescription drug orders based on routine, regularly observed prescribing patterns.

or a drug which is required by any applicable federal or North Dakota law or rule to be dispensed on prescription only or is restricted to use by practitioners only.

Source:

S.L. 1907, ch. 182, § 2; C.L. 1913, § 476; S.L. 1927, ch. 211, § 1; R.C. 1943, § 43-1501; S.L. 1959, ch. 322, § 1; 1979, ch. 187, § 86; 1979, ch. 465, § 3; 1981, ch. 443, § 1; 1991, ch. 456, § 1; 1991, ch. 457, § 1; 1993, ch. 54, § 106; 1993, ch. 422, §§ 1, 2; 1993, ch. 423, §§ 1, 2; 1995, ch. 405, § 1; 1995, ch. 406, § 1; 1997, ch. 371, § 1; 1999, ch. 378, § 1; 1999, ch. 379, § 4; 2001, ch. 213, § 8; 2001, ch. 375, § 1; 2003, ch. 211, § 21; 2007, ch. 363, § 1; 2011, ch. 310, § 1; 2019, ch. 350, § 1, effective August 1, 2019; 2021, ch. 312, § 1, effective March 23, 2021.

Notes to Decisions

Pharmacy.

State board of pharmacy has not issued different types of permits for different categories of pharmacy practice, or limited pharmacies to either a “hospital” or a “retail” operation. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Collateral References.

Druggist’s civil liability for injuries sustained as result of negligence in incorrectly filling drug prescriptions, 3 A.L.R.4th 270.

Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.

Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.

Exemplary or Punitive Damages for Pharmacist’s Wrongful Conduct in Preparing or Dispensing Medical Prescription -- Cases Not Under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.

43-15-02. Exemptions.

The provisions of this chapter shall not apply to the following:

  1. A duly licensed practitioner of medicine supplying the practitioner’s own patients with such remedies as the practitioner may desire.
  2. The exclusive wholesale business of any dealer.
  3. The keeping for sale and sale by general dealers of proprietary medicines in original packages and such simple household remedies as from time to time may be approved for such sale by the board.
  4. Registered or copyrighted proprietary medicines.
  5. The manufacture of proprietary remedies or the sale of the same in original packages by other than pharmacists.
  6. A veterinary dispensing technician operating within a veterinary retail facility.
  7. An individual licensed as a registered nurse under chapter 43-12.1, in the course of dispensing oral contraceptive pills, transdermal contraceptive patches, and vaginal contraceptive rings, pursuant to an order of an authorized prescriber, in the course of working in a Title X clinic.

Source:

S.L. 1907, ch. 182, § 25; C.L. 1913, § 499; S.L. 1931, ch. 212, § 1; R.C. 1943, § 43-1502; S.L. 1959, ch. 322, § 2; 2011, ch. 311, § 1; 2019, ch. 351, § 1, effective March 21, 2019.

Notes to Decisions

Sale of Patent Medicine.

The sale in good faith by a storekeeper of patent medicine containing alcohol is not unlawful, if sold as medicine. State v. Williams, 14 N.D. 411, 104 N.W. 546, 1905 N.D. LEXIS 64 (N.D. 1905).

43-15-03. Board of pharmacy — Appointment.

The state board of pharmacy consists of seven members appointed by the governor. Five members of the board must be licensed pharmacists, one member must be a registered pharmacy technician, and one member must represent the public and may not be affiliated with any group or profession that provides or regulates any type of health care.

Source:

S.L. 1890, ch. 108, § 4; R.C. 1895, § 284; R.C. 1899, § 284; R.C. 1905, § 303; S.L. 1907, ch. 182, § 3; C.L. 1913, § 477; R.C. 1943, § 43-1503; S.L. 1993, ch. 422, § 3; 2009, ch. 365, § 1.

Notes to Decisions

Appointment of Member.

The governor is not authorized to appoint a member of the pharmacy board to succeed a member whose term expires, except on the recommendation of the state pharmaceutical association. Rosoff v. Haussamen, 59 N.D. 154, 228 N.W. 830, 1930 N.D. LEXIS 130 (N.D. 1930).

43-15-04. State board of pharmacy — Term of office — Vacancies.

The members of the board must be appointed for terms of five years each, with the terms of office so arranged that one term only expires on the eighth day of May of each year. Each member of the board shall qualify by taking the oath required of civil officers and shall hold office until a successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term.

Source:

S.L. 1890, ch. 108, § 4; R.C. 1895, § 284; R.C. 1899, § 284; R.C. 1905, § 303; S.L. 1907, ch. 182, §§ 3, 4; C.L. 1913, §§ 477, 478; R.C. 1943, § 43-1504.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-15-05. Compensation of board — Disposition of fees.

Each member of the board shall receive a per diem of two hundred dollars for attendance at board meetings, and all actual and necessary expenses incurred in attending such meetings and in performing other official duties. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1890, ch. 108, § 11; 1893, ch. 80, § 5; R.C. 1895, § 290; R.C. 1899, § 290; R.C. 1905, § 311; S.L. 1907, ch. 182, § 19; C.L. 1913, § 493; S.L. 1927, ch. 211, § 6; R.C. 1943, § 43-1505; S.L. 1959, ch. 322, § 2; 1971, ch. 510, § 9; 2007, ch. 363, § 2.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-15-06. Organization of board.

  1. At the first regular meeting of the board after the appointment and qualification of a new member for a full term, the board shall elect a president, a secretary, and a treasurer. The president must be chosen from the membership of the board, but any suitable person, whether a member of the board or not, may be chosen for the other offices. In case of the death, removal, resignation, absence, or refusal or inability to act of the president of the board, the senior member present shall act as president. In case of the death, removal, resignation, absence, or refusal or inability to act of the secretary or treasurer, the board may choose another person to act temporarily or for the remainder of the year. The president of the board of pharmacy shall preside at all meetings of the board and is responsible for the performance of all of the duties and functions of the board required or permitted by this chapter. Each additional officer elected by the board shall perform those duties normally associated with the officer’s position and such other duties assigned from time to time by the board.
  2. The board shall employ a pharmacist to serve as a full-time employee of the board in the position of executive director. The executive director is responsible for the performance of the administrative functions of the board and such other duties as the board may direct. The executive director may also serve as secretary and treasurer of the board.
  3. The executive director is authorized to sign on behalf of the board notices, complaints, statement of charges, stipulations, settlement agreements, findings of fact, conclusions of law, orders and decisions of the board without additional signatures of the president of the board or board members.

Source:

S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, § 5; C.L. 1913, § 479; R.C. 1943, § 43-1506; S.L. 1959, ch. 322, § 4; 1993, ch. 422, § 4.

43-15-07. Officers of board — Bond — Duties — Compensation.

The secretary and treasurer of the board each must be bonded for the faithful discharge of their duties in the penal sum of not less than two thousand dollars. The president, secretary, and treasurer of the board shall perform such duties as the board may prescribe. Officers of the board may be allowed, in addition to their compensation as members of the board, such compensation as four-fifths of the members of the board agree upon.

Source:

S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, § 5; C.L. 1913, § 479; R.C. 1943, § 43-1507; S.L. 1975, ch. 258, § 22.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-15-08. Oaths — President may administer.

The president of the board may administer oaths to applicants for registration and to any witness in hearings, investigations, or proceedings pending before the board.

Source:

S.L. 1907, ch. 182, § 6, subs. f; C.L. 1913, § 480, subs. f; R.C. 1943, § 43-1508.

43-15-09. Meetings — When held — Notice — Quorum.

The board shall hold at least two and not more than four meetings in each calendar year for the examination of applicants for licensure. The board may hold such other meetings as may be necessary for the performance of its duties. A special meeting must be held at such time and place as a majority of the members agree upon, or may be called by the secretary, at the request of the president or any two members, by giving such notice to the members as the board may prescribe by its rules and regulations. A majority of the board constitutes a quorum for the transaction of business.

Source:

S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 5, 6; C.L. 1913, §§ 479, 480; R.C. 1943, § 43-1509; S.L. 1959, ch. 322, § 5; 1993, ch. 422, § 5.

43-15-10. Powers of board. [Effective through August 31, 2022]

In addition to other powers provided by law, the board shall have the following powers and duties, which shall be exercised in conformity with chapter 28-32 in order to protect the public health, welfare, and safety:

  1. To place on probation, reprimand, or fine any pharmacy, pharmacist, or pharmacy intern or pharmacy technician; or refuse to issue or renew, or suspend, revoke, restrict, or cancel, the license, permit, or registration of any pharmacy, pharmacist, or pharmacy intern or pharmacy technician, if any of the following grounds apply and the pharmacy, pharmacist, or pharmacy intern or pharmacy technician:
    1. Is addicted to any alcohol or drug habit.
    2. Uses any advertising statements of a character tending to deceive or mislead the public.
    3. Is subject to drug or alcohol dependency or abuse.
    4. Permits or engages in the unauthorized sale of narcotic drugs or controlled substances.
    5. Permits or engages an unauthorized person to practice pharmacy.
    6. Is mentally or physically incompetent to handle pharmaceutical duties.
    7. Is guilty of fraud, deception, or misrepresentation in passing the pharmacist examination.
    8. Is found by the board in violation of any of the provisions of the laws regulating drugs, pharmacies, and pharmacists or interns and technicians or the rules and regulations established by the board.
    9. Is found to have engaged in unprofessional conduct as that term is defined by the rules of the board.
    10. Is subject to incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence, and safety to the public.
    11. Is found guilty by a court of competent jurisdiction of one or more of the following:
      1. A felony, as defined by the statutes of North Dakota.
      2. Any act involving moral turpitude or gross immorality.
      3. Violations of the pharmacy or the drug laws of North Dakota or rules and regulations pertaining thereto, or of statutes, rules or regulations of any other state, or of the federal government.
    12. Commits fraud or intentional misrepresentation in securing the issuance or renewal of a license or pharmacy permit.
    13. Sells, dispenses, or compounds any drug while on duty and while under the influence of alcohol or while under the influence of a controlled substance without a practitioner’s prescription.
    14. Discloses confidential information to any person, except as authorized by law.
  2. To prescribe rules and regulations not inconsistent with this chapter governing the cancellation or suspension of a license.
  3. To examine and license as pharmacist any applicant found entitled to such license.
  4. To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business.
  5. To employ and pay such persons as it may deem necessary to inspect pharmacies in this state, investigate pharmacies for the information of the board, procure evidence in any proceeding pending before the board, or procure evidence in aid of any prosecution or action in any court commenced or about to be commenced by or against the board in relation to any matter in which the board has any duty to perform.
  6. To employ and pay counsel to advise the board or to prosecute or defend any action or proceeding commenced by or against the board or pending before it.
  7. To grant permits and renewals thereof for the establishment and operation of pharmacies.
  8. Only for good cause to cancel, revoke, or suspend permits and renewals thereof for the establishment and operation of pharmacies.
  9. To prescribe reasonable and nondiscriminatory rules and regulations in regard to granting, renewing, canceling, revoking, or suspending permits and renewals for establishing and operating pharmacies.
  10. Action by the board canceling, revoking, suspending, or refusing to renew a permit to establish or operate a pharmacy shall not be enforced for thirty days after notice has been given an aggrieved party by the board, nor during the time that an appeal by such aggrieved party is pending and until such appeal is finally determined.
  11. To prescribe reasonable rules and regulations relating to the physical design of space occupied by a pharmacy to ensure appropriate control of and safeguards over the contents of such pharmacy.
  12. To regulate and control the practice of pharmacy in North Dakota.
  13. To adopt, amend, and repeal rules for the regulation of pharmacies and pharmacists providing radiopharmaceutical services, including special training, education, and experience for pharmacists and physical design of space, safeguards, and equipment for pharmacies.
  14. To adopt, amend, and repeal rules determined necessary by the board for the proper administration and enforcement of this chapter, chapter 19-02.1 as that chapter pertains to drugs, subject to approval of the director of the state department of health, and chapter 19-03.1.
  15. The board or its authorized representatives may investigate and gather evidence concerning alleged violations of the provisions of chapter 43-15, chapter 19-02.1 that pertains to drugs, chapters 19-03.1, 19-03.2, and 19-04, or of the rules of the board. Board investigative files are confidential and may not be considered public records or open records for purposes of section 44-04-18, until a complaint is filed or a decision made by the board not to file a complaint.
  16. In addition to other remedies, the board may apply to the district court in the jurisdiction of an alleged violation, and that court has jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of chapter 43-15, chapter 19-02.1 pertaining to drugs, and chapter 19-03.1, whether or not there exists an adequate remedy at law. Whenever a duly authorized representative of the board finds or has probable cause to believe that any drug or device is adulterated, misbranded, mislabeled, or improperly identified, within the meaning of chapter 19-02.1, the representative shall affix to that drug or device a tag or other appropriate marking giving notice that the article is or is suspected of being adulterated, misbranded, mislabeled, or improperly identified, has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until provision for removal or disposal is given by the board or its agents or the court. No person may remove or dispose of such embargoed drug or device by sale or otherwise without the permission of the board or its agent, or, after summary proceedings have been instituted, without permission from the court.
  17. When a drug or device detained or embargoed has been declared by such representative to be adulterated, misbranded, mislabeled, or improperly identified, the board shall, as soon as practical thereafter, petition the district court in whose jurisdiction the article is detained or embargoed for an order for condemnation of such article. If the judge determines that the drug or device so detained or embargoed is not adulterated, misbranded, mislabeled, or improperly identified, the board shall direct the immediate removal of the tag or other marking. If the court finds the detained or embargoed drug or device is adulterated, misbranded, mislabeled, or improperly identified, such drug or device, after entry of the decree, shall be destroyed at the expense of the owner under the supervision of a board representative and all court costs and fees, storage, and other proper expense shall be borne by the owner of such drug or device. When the adulteration, misbranding, mislabeling, or improper identification can be corrected by proper labeling or processing of the drug or device, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond has been posted, may direct that such drug or device be delivered to the owner for labeling or processing under the supervision of a board representative. Expense of supervision shall be paid by the owner. Bond posted shall be returned to the owner of the drug or device on representation to the court by the board that the drug or device is no longer in violation of the embargo and the expense of supervision has been paid. Nothing in this section shall be construed to require the board to report violations whenever the board believes the public’s interest will be adequately served in the circumstances by a suitable written notice or warning.
  18. The board shall establish a bill of rights for patients concerning the health care services a patient may expect in regard to pharmaceutical care.
  19. To adopt, amend, and repeal rules as may be deemed necessary by the board to register pharmacy technicians pursuant to qualifications established by the board, to charge a pharmacy technician an annual registration fee not to exceed fifty dollars, to specify tasks associated with and included in the practice of pharmacy which may be delegated by a licensed pharmacist to a registered pharmacy technician, to provide for suspension or revocation of a pharmacy technician’s registration, and to regulate and control pharmacy technicians. The board may allocate up to fifty percent of the amount of the registration fee to an appropriate pharmacy technician association for its general operating expenses, including pharmacy technician education and development standards.
  20. To require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  21. To require information regarding an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, including the national association of boards of pharmacy data bank, other data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies be reported to the board. The board may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the licensee or applicant.
  22. To adopt, amend, and repeal rules as may be deemed necessary by the board to register veterinary dispensing technicians pursuant to qualifications established by the board, to charge a veterinary dispensing technician an annual registration fee not to exceed fifty dollars, to provide for suspension or revocation of a veterinary dispensing technician’s registration, to provide for suspension or revocation of a veterinary retail facility’s license, to regulate and control veterinary retail facilities, and to regulate and control veterinary dispensing technicians.
  23. To establish limited prescriptive authority for individuals to distribute opioid antagonist kits, also known as “Naloxone rescue kits.” If the board establishes limited prescriptive authority under this subsection, the board shall adopt rules to establish standards that may include training, certification, and continuing education requirements.
  24. To establish limited prescriptive authority through a statewide protocol for public health issues within the scope of practice for a pharmacist. The board shall adopt rules to establish standards of care.

Source:

S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 6, 7; C.L. 1913, §§ 480, 481; S.L. 1937, ch. 193, §§ 3, 4; R.C. 1943, § 43-1510; S.L. 1959, ch. 322, § 6; S.L. 1971, ch. 436, § 1; 1979, ch. 467, § 1; 1981, ch. 444, §§ 1, 2; 1985, ch. 479, § 1; 1987, ch. 518, § 1; 1987, ch. 519, § 1; 1989, ch. 316, § 3; 1993, ch. 422, §§ 6, 7; 1995, ch. 217, § 4; 1995, ch. 243, § 2; 1995, ch. 405, § 2; 2003, ch. 211, § 22; 2007, ch. 363, § 3; 2007, ch. 115, § 10; 2011, ch. 311, § 2; 2015, ch. 187, § 2, effective August 1, 2015; 2021, ch. 312, § 2, effective March 23, 2021.

Section 43-15-10 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 360 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 2 of Chapter 312, Session Laws 2021, Senate Bill 2221.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Advertising of Price.

The First Amendment guarantee of freedom of speech prohibits a state from imposing a total ban on the advertisement of prices charged by pharmacists for prescription drugs, but does not preclude regulation of the time, place and manner of such advertising. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346, 1976 U.S. LEXIS 55 (U.S. 1976).

Rules and Regulations.

The board has no right to make a rule including any substantive matter not authorized by statute. Any such new matter would constitute legislation. Medical Properties v. North Dakota Bd. of Pharmacy, 80 N.W.2d 87, 1956 N.D. LEXIS 161 (N.D. 1956).

Denial of post-conviction relief was proper, because an administrative rule delineated JWH-018 1-Pentyl-3 (1-naphthoyl) indole (JWH-018) as a prohibited controlled substance when petitioner committed the alleged acts, the administrative rule had force and effect of law upon becoming effective, and subsequent codification of JWH-018 as a prohibited controlled substance did not invalidate the effect of the final administrative rule. Haag v. State, 2012 ND 241, 823 N.W.2d 749, 2012 N.D. LEXIS 246 (N.D. 2012).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Revocation or suspension of license or permit to practice pharmacy or operate drugstore because of improper sale or distribution of narcotic or stimulant drugs, 17 A.L.R.3d 1408.

Price advertisement: validity of statute or ordinance forbidding pharmacists to advertise prices of drugs or medicines, 44 A.L.R.3d 1301.

43-15-10. Powers of board. [Effective September 1, 2022]

In addition to other powers provided by law, the board shall have the following powers and duties, which shall be exercised in conformity with chapter 28-32 in order to protect the public health, welfare, and safety:

  1. To place on probation, reprimand, or fine any pharmacy, pharmacist, or pharmacy intern or pharmacy technician; or refuse to issue or renew, or suspend, revoke, restrict, or cancel, the license, permit, or registration of any pharmacy, pharmacist, or pharmacy intern or pharmacy technician, if any of the following grounds apply and the pharmacy, pharmacist, or pharmacy intern or pharmacy technician:
    1. Is addicted to any alcohol or drug habit.
    2. Uses any advertising statements of a character tending to deceive or mislead the public.
    3. Is subject to drug or alcohol dependency or abuse.
    4. Permits or engages in the unauthorized sale of narcotic drugs or controlled substances.
    5. Permits or engages an unauthorized person to practice pharmacy.
    6. Is mentally or physically incompetent to handle pharmaceutical duties.
    7. Is guilty of fraud, deception, or misrepresentation in passing the pharmacist examination.
    8. Is found by the board in violation of any of the provisions of the laws regulating drugs, pharmacies, and pharmacists or interns and technicians or the rules and regulations established by the board.
    9. Is found to have engaged in unprofessional conduct as that term is defined by the rules of the board.
    10. Is subject to incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence, and safety to the public.
    11. Is found guilty by a court of competent jurisdiction of one or more of the following:
      1. A felony, as defined by the statutes of North Dakota.
      2. Any act involving moral turpitude or gross immorality.
      3. Violations of the pharmacy or the drug laws of North Dakota or rules and regulations pertaining thereto, or of statutes, rules or regulations of any other state, or of the federal government.
    12. Commits fraud or intentional misrepresentation in securing the issuance or renewal of a license or pharmacy permit.
    13. Sells, dispenses, or compounds any drug while on duty and while under the influence of alcohol or while under the influence of a controlled substance without a practitioner’s prescription.
    14. Discloses confidential information to any person, except as authorized by law.
  2. To prescribe rules and regulations not inconsistent with this chapter governing the cancellation or suspension of a license.
  3. To examine and license as pharmacist any applicant found entitled to such license.
  4. To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business.
  5. To employ and pay such persons as it may deem necessary to inspect pharmacies in this state, investigate pharmacies for the information of the board, procure evidence in any proceeding pending before the board, or procure evidence in aid of any prosecution or action in any court commenced or about to be commenced by or against the board in relation to any matter in which the board has any duty to perform.
  6. To employ and pay counsel to advise the board or to prosecute or defend any action or proceeding commenced by or against the board or pending before it.
  7. To grant permits and renewals thereof for the establishment and operation of pharmacies.
  8. Only for good cause to cancel, revoke, or suspend permits and renewals thereof for the establishment and operation of pharmacies.
  9. To prescribe reasonable and nondiscriminatory rules and regulations in regard to granting, renewing, canceling, revoking, or suspending permits and renewals for establishing and operating pharmacies.
  10. Action by the board canceling, revoking, suspending, or refusing to renew a permit to establish or operate a pharmacy shall not be enforced for thirty days after notice has been given an aggrieved party by the board, nor during the time that an appeal by such aggrieved party is pending and until such appeal is finally determined.
  11. To prescribe reasonable rules and regulations relating to the physical design of space occupied by a pharmacy to ensure appropriate control of and safeguards over the contents of such pharmacy.
  12. To regulate and control the practice of pharmacy in North Dakota.
  13. To adopt, amend, and repeal rules for the regulation of pharmacies and pharmacists providing radiopharmaceutical services, including special training, education, and experience for pharmacists and physical design of space, safeguards, and equipment for pharmacies.
  14. To adopt, amend, and repeal rules determined necessary by the board for the proper administration and enforcement of this chapter, chapter 19-02.1 as that chapter pertains to drugs, subject to approval of the director of the department of health and human services, and chapter 19-03.1.
  15. The board or its authorized representatives may investigate and gather evidence concerning alleged violations of the provisions of chapter 43-15, chapter 19-02.1 that pertains to drugs, chapters 19-03.1, 19-03.2, and 19-04, or of the rules of the board. Board investigative files are confidential and may not be considered public records or open records for purposes of section 44-04-18, until a complaint is filed or a decision made by the board not to file a complaint.
  16. In addition to other remedies, the board may apply to the district court in the jurisdiction of an alleged violation, and that court has jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of chapter 43-15, chapter 19-02.1 pertaining to drugs, and chapter 19-03.1, whether or not there exists an adequate remedy at law. Whenever a duly authorized representative of the board finds or has probable cause to believe that any drug or device is adulterated, misbranded, mislabeled, or improperly identified, within the meaning of chapter 19-02.1, the representative shall affix to that drug or device a tag or other appropriate marking giving notice that the article is or is suspected of being adulterated, misbranded, mislabeled, or improperly identified, has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until provision for removal or disposal is given by the board or its agents or the court. No person may remove or dispose of such embargoed drug or device by sale or otherwise without the permission of the board or its agent, or, after summary proceedings have been instituted, without permission from the court.
  17. When a drug or device detained or embargoed has been declared by such representative to be adulterated, misbranded, mislabeled, or improperly identified, the board shall, as soon as practical thereafter, petition the district court in whose jurisdiction the article is detained or embargoed for an order for condemnation of such article. If the judge determines that the drug or device so detained or embargoed is not adulterated, misbranded, mislabeled, or improperly identified, the board shall direct the immediate removal of the tag or other marking. If the court finds the detained or embargoed drug or device is adulterated, misbranded, mislabeled, or improperly identified, such drug or device, after entry of the decree, shall be destroyed at the expense of the owner under the supervision of a board representative and all court costs and fees, storage, and other proper expense shall be borne by the owner of such drug or device. When the adulteration, misbranding, mislabeling, or improper identification can be corrected by proper labeling or processing of the drug or device, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond has been posted, may direct that such drug or device be delivered to the owner for labeling or processing under the supervision of a board representative. Expense of supervision shall be paid by the owner. Bond posted shall be returned to the owner of the drug or device on representation to the court by the board that the drug or device is no longer in violation of the embargo and the expense of supervision has been paid. Nothing in this section shall be construed to require the board to report violations whenever the board believes the public’s interest will be adequately served in the circumstances by a suitable written notice or warning.
  18. The board shall establish a bill of rights for patients concerning the health care services a patient may expect in regard to pharmaceutical care.
  19. To adopt, amend, and repeal rules as may be deemed necessary by the board to register pharmacy technicians pursuant to qualifications established by the board, to charge a pharmacy technician an annual registration fee not to exceed fifty dollars, to specify tasks associated with and included in the practice of pharmacy which may be delegated by a licensed pharmacist to a registered pharmacy technician, to provide for suspension or revocation of a pharmacy technician’s registration, and to regulate and control pharmacy technicians. The board may allocate up to fifty percent of the amount of the registration fee to an appropriate pharmacy technician association for its general operating expenses, including pharmacy technician education and development standards.
  20. To require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  21. To require information regarding an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, including the national association of boards of pharmacy data bank, other data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies be reported to the board. The board may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the licensee or applicant.
  22. To adopt, amend, and repeal rules as may be deemed necessary by the board to register veterinary dispensing technicians pursuant to qualifications established by the board, to charge a veterinary dispensing technician an annual registration fee not to exceed fifty dollars, to provide for suspension or revocation of a veterinary dispensing technician’s registration, to provide for suspension or revocation of a veterinary retail facility’s license, to regulate and control veterinary retail facilities, and to regulate and control veterinary dispensing technicians.
  23. To establish limited prescriptive authority for individuals to distribute opioid antagonist kits, also known as “Naloxone rescue kits.” If the board establishes limited prescriptive authority under this subsection, the board shall adopt rules to establish standards that may include training, certification, and continuing education requirements.
  24. To establish limited prescriptive authority through a statewide protocol for public health issues within the scope of practice for a pharmacist. The board shall adopt rules to establish standards of care.

Source:

S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 6, 7; C.L. 1913, §§ 480, 481; S.L. 1937, ch. 193, §§ 3, 4; R.C. 1943, § 43-1510; S.L. 1959, ch. 322, § 6; S.L. 1971, ch. 436, § 1; 1979, ch. 467, § 1; 1981, ch. 444, §§ 1, 2; 1985, ch. 479, § 1; 1987, ch. 518, § 1; 1987, ch. 519, § 1; 1989, ch. 316, § 3; 1993, ch. 422, §§ 6, 7; 1995, ch. 217, § 4; 1995, ch. 243, § 2; 1995, ch. 405, § 2; 2003, ch. 211, § 22; 2007, ch. 363, § 3; 2007, ch. 115, § 10; 2011, ch. 311, § 2; 2015, ch. 187, § 2, effective August 1, 2015; 2021, ch. 352, § 360, effective September 1, 2022.

43-15-11. Fees deposited with state treasurer — Separate fund — Vouchers. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

For present provisions on deposit and disbursement of funds of occupational and professional boards, see section 54-44-12.

43-15-12. State board of pharmacy — Report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1890, ch. 108, § 11; 1893, ch. 80, § 5; R.C. 1895, § 290; R.C. 1899, § 290; R.C. 1905, § 311; S.L. 1907, ch. 182, § 20; C.L. 1913, § 494; R.C. 1943, § 43-1512; S.L. 1963, ch. 346, § 42; 1973, ch. 403, § 32; 1975, ch. 466, § 34; 1995, ch. 350, § 33; 2009, ch. 365, § 2.

43-15-13. State board of pharmacy — When members may teach pharmacy. [Repealed]

Repealed by S.L. 1995, ch. 407, § 1.

43-15-13.1. North Dakota pharmaceutical association — How governed. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.2. Membership of North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.3. Rights of members of pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.4. Moneys payable from board of pharmacy to North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.5. Method of expenditure of association’s funds — Annual report of receipts and disbursements. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.6. No liability upon state created by provisions of chapter. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-14. Unlawful practice of pharmacy.

  1. Applicability. No person may engage in the practice of pharmacy unless licensed to practice pharmacy under this chapter, except that a registered pharmacy technician may perform specific tasks delegated by and under the immediate personal supervision and control of a licensed pharmacist, as permitted under rules adopted by the board. Physicians or other practitioners as defined in this chapter who are licensed under the laws of this state may dispense and administer prescription drugs to their patients in the practice of their respective professions if specifically authorized to do so by state law.
  2. Penalties. Any person who is found by the board to have unlawfully engaged in the practice of pharmacy is subject to a fine to be imposed by the board not to exceed one thousand dollars for each offense. Each violation of this chapter or the rules adopted under this chapter pertaining to unlawfully engaging in the practice of pharmacy also constitutes a class B misdemeanor.
  3. A pharmacy or licensed pharmacist that utilizes the services of a registered pharmacy technician as permitted by the board, may not be considered as aiding and abetting an unauthorized person to practice pharmacy; provided, however, that the pharmacy or licensed pharmacist must retain responsibility for any act performed by a registered pharmacy technician in the course of the registered pharmacy technician’s employment.

Source:

S.L. 1907, ch. 182, § 1; C.L. 1913, § 475; R.C. 1943, § 43-1514; S.L. 1957, ch. 300, § 1; 1957 Supp., § 43-1514; S.L. 1959, ch. 322, § 7; 1979, ch. 187, § 87; 1979, ch. 467, § 2; 1991, ch. 458, § 1; 1993, ch. 422, § 11; 1995, ch. 405, § 3.

Cross-References.

Controlled substances for care and treatment, see N.D.C.C. ch. 19-03.3.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

Sale of controlled substances, see N.D.C.C. ch. 19-03.1.

Sale of poisons, see N.D.C.C. ch. 19-04.

Collateral References.

“Brand name” or original-package nonprescription remedies, applicability of statutes prohibiting sales of medicines or drugs other than by pharmacists or pharmacies to, 98 A.L.R.2d 1063.

Physician’s liability to third person for prescribing drug to known drug addict, 42 A.L.R.4th 586.

43-15-15. Qualifications of licensed pharmacist.

Every applicant for license as a pharmacist in this state shall have the following qualifications:

  1. Be at least eighteen years of age.
  2. Be of good moral character.
  3. Be a graduate of a school or college of pharmacy recognized by the board as an approved school.

Any applicant who is a graduate of a school or college of pharmacy located outside the United States, whose school or college of pharmacy has not been recognized by the board as an approved school but who is otherwise qualified to apply for licensure to practice pharmacy in this state, may be deemed to have satisfied the requirements of subsection 3 by verification to the board of applicant’s academic record and applicant’s graduation and by meeting such other requirements as the board may establish from time to time. The board may require such applicant to successfully pass an examination or examinations given or approved by the board to establish proficiency in English and equivalency of education of such applicant with qualified graduates of a school or college recognized by the board as a prerequisite of taking the licensure examination provided for in section 43-15-19.

Before a license will be granted by the North Dakota board of pharmacy, the applicant must have practical experience for a term to be determined by the board in accordance with the requirements of the national association of boards of pharmacy in a retail pharmacy under the supervision of a licensed pharmacist, which experience must be predominantly work directly relating to selling drugs and poisons, compounding of pharmaceutical preparations and physicians’ prescriptions, keeping records, and making reports required under the state and federal statutes. Any employment of the applicant prior to the applicant’s completion of the first year of study in a college of pharmacy or its equivalent may not be applied in computing the fulfillment of this requirement.

Source:

S.L. 1890, ch. 108, § 2; R.C. 1895, § 286; R.C. 1899, § 286; S.L. 1905, ch. 146, § 1; R.C. 1905, § 305; S.L. 1907, ch. 182, § 12; 1911, ch. 202, § 1; C.L. 1913, § 486; S.L. 1927, ch. 211, § 2; 1929, ch. 185, § 1; 1935, ch. 232, § 1; 1941, ch. 185, § 1; R.C. 1943, § 43-1515; S.L. 1949, ch. 289, § 1; 1957 Supp., § 43-1515; S.L. 1959, ch. 322, § 8; 1963, ch. 309, § 1; 1973, ch. 120, § 46; 1973, ch. 350, § 1; 1983, ch. 478, § 1; 1993, ch. 422, § 12.

43-15-16. Exception to qualificational requirements.

Any person qualified to take the examination for licensure as a pharmacist in this state under the law in effect prior to July 1, 1927, who failed to apply for the examination, upon due proof to the board that the person was so qualified and that the person is a bona fide resident of this state, may take the examination. Upon passing the examination in a manner satisfactory to the majority of the board, such person shall be given a license as a licensed pharmacist.

Source:

S.L. 1941, ch. 185, § 1; R.C. 1943, § 43-1516; 1993, ch. 422, § 13.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

43-15-17. Qualifications for assistant registered pharmacist. [Repealed]

Repealed by S.L. 1979, ch. 467, § 16.

43-15-18. License of pharmacy intern.

To register in this state a pharmacy intern must have completed one year of college, be registered in a prepharmacy program, and must be employed by a licensed pharmacist. At the date of entering into internship, an intern shall file with the executive director of the board the following certificates accompanied by a fee set by the board:

  1. An application stating the applicant has entered into an internship giving the intern’s name, residence, and educational qualifications.
  2. A statement from the intern’s employer stating that the applicant will be employed by the pharmacist, as a pharmacy intern, that to the employer’s knowledge the applicant possesses the required education and qualifications.

The executive director of the board shall file the application and license the applicant as a pharmacy intern.

Source:

S.L. 1903, ch. 135, §§ 1, 2; R.C. 1905, §§ 308, 309; S.L. 1907, ch. 182, § 15; C.L. 1913, § 489; S.L. 1927, ch. 210, § 1; R.C. 1943, § 43-1518; S.L. 1959, ch. 322, § 9; 1973, ch. 351, § 1; 1993, ch. 422, § 14; 1999, ch. 379, § 5.

43-15-18.1. Conviction not bar to license — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a pharmacist or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 29; 1993, ch. 422, § 15.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-15-19. Examination for license.

Except as otherwise provided in this chapter, every applicant for licensure as a pharmacist, before receiving a license from the board, shall pass such an examination as to the applicant’s education and professional qualifications as the board shall prescribe.

Source:

S.L. 1907, ch. 182, § 11; C.L. 1913, § 485; R.C. 1943, § 43-1519; S.L. 1979, ch. 467, § 3; 1993, ch. 422, § 16.

43-15-20. Fees for examination.

Each applicant for licensure as a pharmacist in this state shall pay to the secretary of the board before examination a fee to be set by the board not to exceed three hundred dollars. If the applicant fails to pass a satisfactory examination, the applicant may be re-examined at any regular meeting of the board, upon the payment of a further fee to be set by the board not to exceed three hundred dollars.

Source:

S.L. 1890, ch. 108, §§ 8, 9; 1893, ch. 80, § 3; R.C. 1895, §§ 287, 288; R.C. 1899, §§ 287, 288; S.L. 1903, ch. 136, § 1; R.C. 1905, §§ 306, 307; S.L. 1907, ch. 182, § 14; C.L. 1913, § 488; S.L. 1927, ch. 211, § 4; R.C. 1943, § 43-1520; S.L. 1957, ch. 301, § 1; 1957 Supp., § 43-1520; S.L. 1979, ch. 467, § 4; 1993, ch. 422, § 17.

43-15-21. License — Issuance.

The board shall cause to be issued to each pharmacist in this state whom it finds entitled thereto, a license showing:

  1. The date of issue.
  2. The fact that the person to whom it was issued is a licensed pharmacist.
  3. The residence of the person to whom the license was issued.

The license must be signed by a majority of the members of the board.

Source:

S.L. 1890, ch. 108, § 9; R.C. 1895, § 288; R.C. 1899, § 288; S.L. 1903, ch. 136, § 1; R.C. 1905, § 307; S.L. 1907, ch. 182, § 16; C.L. 1913, § 490; S.L. 1927, ch. 211, § 5; R.C. 1943, § 43-1521; S.L. 1979, ch. 467, § 5; 1993, ch. 422, § 18.

43-15-22. Licensing without examination.

The board, without examination, may register and issue a license as a pharmacist to any person of good moral character who presents to the board satisfactory evidence that before coming to this state the applicant legally had been licensed as a pharmacist in another state or foreign country, in which the requirements for such license with respect to qualifications are equivalent to the requirements of this state, but the board need not recognize or accept such license, certificate, or registration as evidence of the applicant’s qualifications unless it is satisfied that the applicant is in fact qualified to be a pharmacist in this state. The board may deny recognition or acceptance of the license, certificate, or registration of any state or foreign country which does not accord similar recognition to licentiates of this state. A fee to be set by the board not to exceed three hundred dollars must be paid prior to licensing without examination as provided for herein.

Source:

S.L. 1907, ch. 182, § 10; C.L. 1913, § 484; R.C. 1943, § 43-1522; S.L. 1979, ch. 467, § 6; 1993, ch. 422, § 19.

43-15-23. Temporary certificate — How obtained.

The secretary of the board, or any member thereof, on request by the secretary in writing, may examine an applicant orally or in writing and issue a temporary certificate to practice pharmacy in this state. The certificate must authorize such practice and must be valid until the next meeting of the board. Only one temporary certificate may be issued to the same applicant, and no temporary certificate may be issued to any person whose application has been acted on by the board. The applicant for a temporary certificate shall pay to the person making the examination the same fee as is provided by this chapter for an examination by the board, and such fees when paid must be for the benefit of the said board and must be delivered to the secretary by the person making the examination.

Source:

S.L. 1907, ch. 182, § 27; C.L. 1913, § 501; R.C. 1943, § 43-1523.

43-15-24. Register.

The secretary of the board shall keep a record or register in which, in addition to such other matters as the board may require, the secretary shall register each certificate issued under the provisions of this chapter, the facts appearing in the certificate, and all cancellations or renewals of the certificate or changes therein.

Source:

S.L. 1907, ch. 182, § 17; C.L. 1913, § 491; R.C. 1943, § 43-1524.

43-15-25. Term of license — Renewal — Fee — Where displayed.

The license issued by the board to a pharmacist under this chapter, and the registration thereof, entitles the holder to act in the capacity therein stated for one year unless duly canceled, suspended, or revoked. Every licensee who desires to retain a license, on or before the first day of March in each year, shall pay to the secretary of the board a renewal fee in an amount to be fixed by the board not to exceed one hundred dollars. Upon payment of the fee, the board shall issue a renewal license. The license and renewal must be displayed in a conspicuous place in the pharmacy and drugstore where the holder is employed. After a licensee has held licenses duly issued over a period of fifty consecutive years, the secretary of the board may issue the licensee a lifetime license that entitles the licensee to act in the capacity of pharmacist thereafter without further payment unless the license is canceled, revoked, or suspended.

Source:

S.L. 1890, ch. 108, §§ 9, 10; 1893, ch. 80, § 4; R.C. 1895, §§ 288, 289; R.C. 1899, §§ 288, 289; S.L. 1903, ch. 136, § 1; R.C. 1905, §§ 308, 310; S.L. 1907, ch. 182, §§ 16, 21; C.L. 1913, §§ 490, 495; S.L. 1927, ch, 211, §§ 5, 7; R.C. 1943, § 43-1525; S.L. 1959, ch. 322, § 10; 1963, ch. 310, § 1; 1973, ch. 352, § 1; 1979, ch. 467, § 7; 1993, ch. 422, § 20; 2009, ch. 365, § 3.

43-15-25.1. Continuing pharmaceutical education.

  1. Each pharmacist shall complete at least fifteen hours of approved continuing pharmaceutical education every year as a condition of renewal of a certificate of licensure as a pharmacist in this state.
  2. An annual renewal of a license may not be issued to a pharmacist until the pharmacist has satisfactorily completed an accredited program of continuing professional education, all of which may be home self-study, during the previous year to help assure the pharmacist’s continued competence to engage in the practice of pharmacy. The board from time to time shall determine the amount of continuing education to be required, not to exceed fifteen hours in each annual period. Upon request of the board, proof of compliance shall be furnished to the board.
  3. The board shall adopt rules necessary to carry out the stated objectives and purposes and to enforce the provisions of this section, which shall include the methods of determining accredited programs, methods of determining compliancy, any fees, and such other rules consistent with this section as the board shall determine. This section and all rules adopted hereunder shall be uniformly applied by the board.

Source:

S.L. 1985, ch. 480, § 1; 1993, ch. 422, § 21; 2009, ch. 366, § 1.

43-15-25.2. Educational requirements — Rules.

The board shall adopt rules establishing the educational requirements and quality control procedures for pharmacists who conduct laboratory tests provided in subsection 24 of section 43-15-01. These rules must include a requirement that pharmacists receive training for each specific test performed and a requirement that pharmacists demonstrate proficiency for each test performed following nationally recognized proficiency guidelines.

Source:

S.L. 1999, ch. 378, § 2; 2007, ch. 363, § 4.

43-15-25.3. Approved laboratory tests.

Approved laboratory tests are the following waived screening tests: glucose monitoring devices (FDA cleared/home use) 9221, cholesterol 1020, HDL cholesterol 2550, triglyceride 6118, glycosylated hemoglobin (Hgb A1C) 2204, and SARS-CoV-2. Additional tests may be added to this list as jointly determined by the board and the North Dakota board of medicine.

Source:

S.L. 1999, ch. 378, § 3; 2015, ch. 297, § 15, effective August 1, 2015; 2021, ch. 171, § 2, effective April 22, 2021.

43-15-26. Failure to renew license — Renewal fee — Cancellation of license — Reinstatement.

If a licensed pharmacist in this state fails to pay the fee for a renewal of a license within the time required, the secretary of the board shall mail the pharmacist a notice, addressed to the pharmacist’s last-known place of residence, notifying the pharmacist of failure to obtain a renewal license. The delinquent licenseholder, within sixty days after the notice is mailed, may procure a renewal license upon the payment of a renewal fee to be set by the board not to exceed one hundred dollars. If the licenseholder fails to have a license renewed within sixty days after the notice is mailed, the original or renewal license, as the case may be, becomes void and the registry thereof must be canceled. The board, on application of the delinquent licenseholder and upon the payment of all unpaid fees, may authorize the issuance of a new license without examination, if it is satisfied that the applicant is a proper individual to receive the same.

Source:

S.L. 1890, ch. 108, §§ 10, 16; 1893, ch. 80, § 4; R.C. 1895, §§ 289, 291; R.C. 1899, §§ 289, 291; R.C. 1905, §§ 310, 312; S.L. 1907, ch. 182, § 21; C.L. 1913, § 495; S.L. 1927, ch. 211, § 7; R.C. 1943, § 43-1526; S.L. 1979, ch. 467, § 8; 1993, ch. 422, § 22; 2009, ch. 365, § 4.

43-15-27. Change place of business — Record — Fee.

Every licensed pharmacist, within thirty days after changing a place of business as designated on the books of the board, shall notify the secretary of the board of the new place of business and shall accompany the notice with a fee to be set by the board not to exceed twenty-five dollars. Upon receipt of the fee and the notice of change of place of business, the secretary shall make the necessary change in the register and issue a receipt for the fee to the person sending it.

Source:

S.L. 1907, ch. 182, § 22; C.L. 1913, § 496; R.C. 1943, § 43-1527; S.L. 1979, ch. 467, § 9; 1993, ch. 422, § 23.

43-15-28. Certificate of registration canceled — Notice of hearing. [Repealed]

Repealed by S.L. 1989, ch. 522, § 2.

43-15-28.1. Temporary suspension — Appeal.

  1. If the board has verified evidence that probable cause or grounds for discipline requires the suspension of a pharmacy permit or license of a pharmacist and if harm to the public is so imminent and critical that substantial harm could or would likely result if the permit or license is not suspended prior to a hearing, the board may order a temporary suspension ex parte.
  2. An ex parte temporary suspension remains in effect for not more than sixty days, unless otherwise terminated by the board.
  3. The board shall set the date of a full hearing on the cause and grounds for discipline regarding the permit or license for not later than sixty days from the issuance of the ex parte temporary suspension order. Within three days after the issuance of the ex parte suspension order, the board shall serve the pharmacy or pharmacist with a copy of the order along with a copy of the complaint and notice of the date set for the full hearing.
  4. The pharmacy or pharmacist may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of appeal, the district court shall decide whether probable cause or grounds for discipline reasonably requires the temporary suspension to adequately protect the public interest. The court shall give priority to the appeal for prompt disposition.

Source:

S.L. 1989, ch. 522, § 1; 1993, ch. 422, § 24.

43-15-29. False registration — Penalty.

Any person who procures or attempts to procure license as a pharmacist, for that person or any other person under this chapter, by making or causing to be made any false representations, or who falsely or fraudulently represents that the person is licensed, is guilty of a class A misdemeanor, and in addition to the penalty imposed by the court, shall, if a licensed pharmacist, have the license canceled by the board.

Source:

S.L. 1907, ch. 182, § 24; C.L. 1913, § 498; R.C. 1943, § 43-1529; S.L. 1975, ch. 106, § 480; 1979, ch. 467, § 11; 1993, ch. 422, § 25.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15-30. Licensed pharmacist member of North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-31. Prescriptions to be filed and preserved.

Every licensed pharmacist in the state shall file, or cause to be filed, any prescription, or a copy thereof, which has been compounded or dispensed in the pharmacist’s pharmacy or drugstore. The prescription or a copy of the prescription must be preserved for at least five years after it has been filled. The pharmacist may furnish a copy of any prescription to the party presenting it on the request of such party only.

Source:

S.L. 1907, ch. 182, § 23; C.L. 1913, § 497; R.C. 1943, § 43-1531; 1987, ch. 520, § 1; 1993, ch. 422, § 27.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

43-15-31.1. Patient profile record system.

A patient profile record system must be maintained in all pharmacies for persons for whom prescriptions are dispensed. The patient profile record system must be devised so as to enable the immediate retrieval of information necessary to enable the dispensing pharmacist to identify previously dispensed medication at the time a prescription is presented for dispensing. One profile card may be maintained for all members of a family living at the same address and possessing the same family name.

The following information must be recorded:

  1. The family name and the first name of the person for whom the medication is intended, which is the patient.
  2. The address of the patient.
  3. An indication of the patient’s age group, e.g., infant, child, adult.
  4. The original date the medication is dispensed pursuant to the receipt of a physician’s prescription.
  5. The number or designation identifying the prescription.
  6. The prescriber’s name.
  7. The name, strength, and quantity of the drug dispensed.
  8. The initials of the dispensing pharmacist, and the date of dispensing medication as a renewal (refill) if said initials and such date are not recorded on the back of the original prescription.

The pharmacist shall attempt to ascertain and shall record any allergies and idiosyncrasies of the patient and any chronic conditions which may relate to drug utilization as communicated to the pharmacy by the patient.

Upon receipt of a prescription, a pharmacist must examine the patient’s profile record before dispensing the medication to determine the possibility of a harmful drug interaction or reaction. Upon recognizing a potential harmful reaction or interaction, the pharmacist shall take appropriate action to avoid or minimize the problem which shall, if necessary, include consultation with the physician.

A patient profile record must be maintained for a period of not less than five years from the date of the last entry in the profile record.

Source:

S.L. 1977, ch. 401, § 1.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

43-15-31.2. Prescription drug information required.

With each prescription dispensed, the licensed pharmacist or the licensed intern pharmacist, in addition to labeling the prescription in accordance with law, must explain to the patient or the patient’s agent the directions for use and a warning of the potential harmful effect of combining any form of alcoholic beverage with the medication and any additional information, in writing if necessary, to assure the proper utilization of the medication or device prescribed. For those prescriptions delivered outside the confines of the pharmacy, the explanation must be by telephone or in writing, provided that this does not apply to those prescriptions for patients in hospitals or institutions where the medication is to be administered by a nurse or other individual licensed to administer medications, or to those prescriptions for patients who are to be discharged from a hospital or institution.

Source:

S.L. 1977, ch. 402, § 1; 1993, ch. 422, § 28.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

Collateral References.

Civil liability of pharmacist or druggists for failure to warn of potential drug interactions in use of prescription drug, 79 A.L.R.5th 409.

43-15-31.3. Oral transmission of prescriptions.

An oral transmission of a prescription drug may be accepted and dispensed by a pharmacist or licensed pharmacist intern if received from a practitioner, or a nurse licensed under chapter 43-12.1 who is authorized by the practitioner to orally transmit the prescription, or a registered dental hygienist or a registered dental assistant who is authorized by the supervising dentist to orally transmit the prescription. The practitioner shall document the order for oral transmission in the patient’s records. Only a licensed pharmacist or a licensed pharmacist intern or a registered pharmacy technician may receive an orally transmitted new or refill prescription.

Source:

S.L. 1993, ch. 422, § 29; 1993, ch. 424, § 1; 1999, ch. 379, § 6; 2009, ch. 366, § 2.

43-15-31.4. Limited prescriptive practices.

  1. A pharmacist has limited prescriptive practices to initiate or modify drug therapy following diagnosis or established protocols by a licensed physician or an advanced practice registered nurse, under the supervision of the licensed physician or advanced practice registered nurse, in accordance with this section. The licensed physician, advanced practice registered nurse, and the pharmacist must have access to the patient’s appropriate medical records. The care provided to the patient by the pharmacist must be recorded in the patient’s medical records and communicated to the licensed physician or the advanced practice registered nurse.
  2. The licensed physician or advanced practice registered nurse, and the pharmacist, shall prepare a collaborative agreement concerning the scope of the pharmacist’s prescriptive practices and shall update the agreement if the scope of the pharmacist’s prescriptive practices is modified. The collaborative agreement, or an amendment to the agreement, is effective if executed by the licensed physician or advanced practice registered nurse, and the pharmacist.
  3. The collaborative agreement may be between a medical director and pharmacist-in-charge. The medical director and pharmacist-in-charge shall document and update the agreement for any physician, advanced practice registered nurse, and pharmacist covered under the agreement.
  4. A collaborative agreement must be made available to the respective licensing boards of the parties to the agreement.
  5. The collaborative agreement must include a provision that requires the pharmacist to immediately notify the licensed physician or advanced practice registered nurse if the pharmacist initiates or modifies a drug therapy.

Source:

S.L. 1995, ch. 408, § 1; 2001, ch. 376, § 1; 2015, ch. 295, § 1, effective August 1, 2015; 2015, ch. 297, § 16, effective August 1, 2015; 2019, ch. 352, § 1, effective August 1, 2019.

43-15-31.5. Administration of drugs — Rules. [Effective through August 31, 2022]

A pharmacist who administers drugs must have authority from the board. The board shall adopt rules to establish educational and operational requirements for a pharmacist to obtain and maintain authority to administer drugs. The board may adopt rules to establish educational and operational requirements to allow a pharmacy technician to administer a drug under the immediate personal supervision and control of a pharmacist. Rules adopted by the board under this section must include:

  1. Educational requirements, which include, at a minimum:
    1. Basic immunology, including the human immune response;
    2. The mechanism of immunity, adverse effects, dose, and administration schedule of available vaccines and approved medication and immunization;
    3. Current immunization guidelines and recommendations of the centers for disease control and prevention;
    4. Management of adverse events, including identification, appropriate response, documentation, and reporting;
    5. Physiology and techniques of administration of drugs; and
    6. Recordkeeping requirements established by law, rule, and regulation or established standards of care.
  2. A requirement an authorized pharmacist shall obtain and maintain current certification in cardiopulmonary resuscitation or basic cardiac life support.
  3. Requirements for content of practitioner orders and protocols.
  4. Requirements relating to the reporting of the administration to a patient’s primary health care provider and to the state department of health.
  5. Requirements relating to environments in which drugs may be administered.

Source:

S.L. 2001, ch. 375, § 2; 2019, ch. 350, § 2, effective August 1, 2019; 2021, ch. 313, § 1, effective March 26, 2021.

Note.

" Section 43-15-31.5 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 361 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 1 of Chapter 313, Session Laws 2021, Senate Bill 2279."

43-15-31.5. Administration of drugs — Rules. [Effective September 1, 2022]

A pharmacist who administers drugs must have authority from the board. The board shall adopt rules to establish educational and operational requirements for a pharmacist to obtain and maintain authority to administer drugs. The board may adopt rules to establish educational and operational requirements to allow a pharmacy technician to administer a drug under the immediate personal supervision and control of a pharmacist. Rules adopted by the board under this section must include:

  1. Educational requirements , which include, at a minimum:
    1. Basic immunology, including the human immune response;
    2. The mechanism of immunity, adverse effects, dose, and administration schedule of available vaccines and approved medication and immunization;
    3. Current immunization guidelines and recommendations of the centers for disease control and prevention;
    4. Management of adverse events, including identification, appropriate response, documentation, and reporting;
    5. Recordkeeping requirements established by law, rule, and regulation or established standards of care.
  2. A requirement an authorized pharmacist shall obtain and maintain current certification in cardiopulmonary resuscitation or basic cardiac life support.
  3. Requirements for content of practitioner orders and protocols.
  4. Requirements relating to the reporting of the administration to a patient’s primary health care provider and to the department of health and human services.
  5. Requirements relating to environments in which drugs may be administered.

Physiology and techniques of administration of drugs; and

Source:

S.L. 2001, ch. 375, § 2; 2019, ch. 350, § 2, effective August 1, 2019; 2021, ch. 352, § 361, effective September 1, 2022.

43-15-32. Who may engage in drug business.

Every store, dispensary, pharmacy, laboratory, or office, selling, dispensing, or compounding drugs, medicines, or chemicals, or compounding or dispensing prescriptions of medical practitioners in the state, and every business carried on under a name which contains the words “drugs”, “drugstore”, or “pharmacy”, or which is described or referred to in such terms by advertisements, circulars, posters, signs, or otherwise, must be in charge of a registered pharmacist.

Source:

S.L. 1907, ch. 182, §§ 2, 26; C.L. 1913, §§ 476, 500; S.L. 1927, ch. 211, § 1; 1931, ch. 212, § 2; R.C. 1943, § 43-1532; S.L. 1975, ch. 106, § 481; 1979, ch. 467, § 12.

Law Reviews.

Note: North Dakota’s Pharmacy Ownership Law: An Analysis of the Strictest Pharmacy Ownership Law in the United States, see 86 N.D. L. Rev. 355 (2010).

43-15-33. License to sell emergency medicines. [Repealed]

Repealed by S.L. 1999, ch. 379, § 8.

43-15-34. Operation of pharmacy — Permit required — Application — Fee.

No person, copartnership, association, corporation, or limited liability company shall open, establish, operate, or maintain any pharmacy within this state without first obtaining a permit so to do from the board. Application for the permit shall be made upon a form to be prescribed and furnished by the board and shall be accompanied by a fee to be set by the board not to exceed three hundred dollars. A like fee shall be paid upon each annual renewal thereof. Separate applications shall be made and separate permits required for each pharmacy opened, established, operated, or maintained by the same owner and for the change of location, name, or ownership of an existing pharmacy.

Source:

S.L. 1937, ch. 193, § 1; R.C. 1943, § 43-1534; S.L. 1949, ch. 290, § 1; 1957 Supp., § 43-1534; S.L. 1973, ch. 353, § 1; 1979, ch. 467, § 13; 1993, ch. 54, § 106.

Notes to Decisions

Hospital Pharmacies.

Hospital operating a pharmacy was not required to procure additional or separate permit to make retail sales to the general public. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

43-15-34.1. Out-of-state pharmacies.

Any pharmacy operating outside the state which ships, mails, or delivers in any manner a dispensed prescription drug or legend drug into North Dakota shall obtain and hold a pharmacy permit issued by the North Dakota state board of pharmacy and that part of the pharmacy operation dispensing the prescription for a North Dakota resident shall abide by state law and rules of the board.

Source:

S.L. 1987, ch. 521, § 1.

43-15-35. Requirements for permit to operate pharmacy — Exceptions.

  1. The board shall issue a permit to operate a pharmacy, or a renewal permit, upon satisfactory proof of all of the following:
    1. The pharmacy will be conducted in full compliance with existing laws and with the rules and regulations established by the board.
    2. The equipment and facilities of the pharmacy are such that prescriptions can be filled accurately and properly, and United States pharmacopeia and national formulary preparations properly compounded and so that it may be operated and maintained in a manner that will not endanger public health and safety.
    3. The pharmacy is equipped with proper pharmaceutical and sanitary appliances and kept in a clean, sanitary, and orderly manner.
    4. The management of the pharmacy is under the personal charge of a pharmacist duly licensed under the laws of this state.
    5. The applicant for such permit is qualified to conduct the pharmacy, and is a licensed pharmacist in good standing or is a partnership, each active member of which is a licensed pharmacist in good standing; a corporation or an association, the majority stock in which is owned by licensed pharmacists in good standing; or a limited liability company, the majority membership interests in which is owned by licensed pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.
    6. Suitable reference sources either in book or electronic data form, are available in the pharmacy or online, which might include the United States pharmacopeia and national formulary, the United States pharmacopeia dispensing information, facts and comparisons, micro medex, the American society of health-system pharmacists formulary, or other suitable references pertinent to the practice carried on in the licensed pharmacy.
  2. The provisions of subdivision e of subsection 1 do not apply to:
    1. The holder of a permit on July 1, 1963, if otherwise qualified to conduct the pharmacy, provided that any such permitholder that discontinues operations under such permit or fails to renew such permit upon expiration is not exempt from the provisions of subdivision e of subsection 1 as to the discontinued or lapsed permit.
    2. A hospital pharmacy furnishing service only to patients in that hospital.
    3. The applicant for a permit to operate a pharmacy which is a hospital, if the pharmacy for which the hospital seeks a permit to operate is a retail pharmacy that is the sole provider of pharmacy services in the community and is a retail pharmacy that was in existence before the hospital took over operations. A hospital operating a pharmacy under this subdivision may operate the pharmacy at any location in the community.
    4. The applicant for a permit to operate a pharmacy which is the owner of a postgraduate medical residency training program if the pharmacy is collocated with and is run in direct conjunction with the postgraduate medical residency training program. For purposes of this subdivision, the postgraduate medical residency training program must be accredited by the accreditation council on graduate medical education or other national accrediting organization.

Source:

S.L. 1937, ch. 193, §§ 2, 6; R.C. 1943, § 43-1535; S.L. 1963, ch. 311, § 1; 1987, ch. 520, § 2; 1993, ch. 54, § 88; 1993, ch. 422, § 31; 1999, ch. 379, § 7; 2007, ch. 364, § 1; 2007, ch. 365, § 1.

Notes to Decisions

Constitutionality.

The requirement of subsection 5 (now subsection (1)(e)) that the majority of a corporate applicant’s common stock be owned by registered pharmacists in good standing does not violate the due process clause of section 1 of the fourteenth amendment to the United States Constitution.North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S. Ct. 407, 38 L. Ed. 2d 379, 1973 U.S. LEXIS 181 (U.S. 1973).

Exemptions to Ownership by Pharmacists.

The two exemptions to ownership of pharmacies by pharmacists, for pharmacies that held permits on July 1, 1963, and for hospital pharmacies, are not mutually exclusive; a pharmacy may be exempt if it qualifies under either exemption. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Management, Supervision and Operation.

Where pharmacist qualified to conduct pharmacy was majority stockholder in corporation applying for permit to operate pharmacy but was not in actual control of pharmacy because bound by lease and franchising and other agreements, board properly denied permit to operate pharmacy for failure to comply with subsection 5 (see now subsection (1)(e)) of this section. Family Ctr. Drug Store v. North Dakota State Bd. of Pharmacy, 181 N.W.2d 738, 1970 N.D. LEXIS 154 (N.D. 1970).

Rulemaking Power.

A rule passed by the board requiring the stockholders of a corporation owning a pharmacy to be registered pharmacists amounted to new legislation and was void. Medical Properties v. North Dakota Bd. of Pharmacy, 80 N.W.2d 87, 1956 N.D. LEXIS 161 (N.D. 1956).

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

Law Reviews.

Note: North Dakota’s Pharmacy Ownership Law: An Analysis of the Strictest Pharmacy Ownership Law in the United States, see 86 N.D. L. Rev. 355 (2010).

43-15-36. Board shall make rules and regulations governing permits — Prescribe equipment necessary.

The rules and regulations relating to the granting, revocation, and renewal of a permit must be adopted and become effective only upon the affirmative vote of a majority of the members of the board. The board shall prescribe the minimum of technical equipment which a pharmacy at all times must possess.

Source:

S.L. 1937, ch. 193, §§ 4, 6; R.C. 1943, § 43-1536.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-15-37. Term of permit — Renewal — Fee — Application. [Repealed]

Repealed by omission from this code.

43-15-38. Failure to renew permit — When new permit granted.

If an application for renewal of a permit issued for the operation or maintenance of a pharmacy in this state is not made before the first day of June of the fiscal year for which the permit was issued, the existing permit, or renewal permit, lapses and becomes null and void upon the thirtieth day of that month. A new or further renewal of a permit may be granted only:

  1. Upon evidence satisfactory to the board of good and sufficient reason or excuse for failure to file an application within the time prescribed.
  2. Upon payment of the regular renewal fee and an additional fee to be set by the board not to exceed two hundred dollars.

Source:

S.L. 1937, ch. 193, § 3; R.C. 1943, § 43-1538; S.L. 1949, ch. 291, § 1; 1957 Supp., § 43-1538; S.L. 1973, ch. 354, § 1; 1979, ch. 467, § 14.

43-15-38.1. Closing a pharmacy.

The permitholder and the pharmacist in charge are jointly responsible to follow the procedures outlined in the rules for closing a pharmacy.

Source:

S.L. 2007, ch. 363, § 5.

43-15-39. Permit and renewal permit posted — Not transferable.

The permit to operate and maintain a pharmacy in this state, and the renewal thereof, must be posted and exposed in a conspicuous place in the pharmacy. Such permit or renewal permit is not transferable.

Source:

S.L. 1937, ch. 193, § 3; R.C. 1943, § 43-1539.

43-15-40. Board may revoke permits and renewal permits.

The board, after due notice and opportunity to be heard, may revoke any permit to establish and maintain a pharmacy, or a renewal thereof, if it is disclosed upon an examination or inspection that the pharmacy is not being operated or conducted according to the rules and regulations of the board and the laws of this state.

Source:

S.L. 1937, ch. 193, § 4; R.C. 1943, § 43-1540.

Collateral References.

Revocation or suspension of license or permit to practice pharmacy or operate drugstore because of improper sale or distribution of narcotic or stimulant drugs, 17 A.L.R.3d 1408.

43-15-41. Board to give notice of refusal or revocation of permits — Appeal.

If an application for a permit or for a renewal thereof is refused, or a permit or a renewal of permit is revoked, the board shall notify the applicant or permittee by registered or certified mail of such refusal or revocation, with its reasons therefor. The applicant or permittee aggrieved by the refusal or revocation may appeal from the decision or order of the board to the district court of Burleigh County, at any time within thirty days after the receipt of the decision or order appealed from. The appellant shall give bond in the penal sum of two hundred fifty dollars, to be approved by the clerk of the district court, conditioned that appellant will pay all costs if the order or decision of the board is affirmed. With the perfecting of the appeal and the filing of the bond, the decision or order of the board must be stayed pending the determination of the appeal.

Source:

S.L. 1937, ch. 193, § 5; R.C. 1943, § 43-1541.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-15-42. Penalty for violation of rule regulating pharmacies.

Any person who violates any rule legally adopted by the board pursuant to this chapter is guilty of an infraction.

Source:

S.L. 1937, ch. 193, § 7; R.C. 1943, § 43-1542; S.L. 1975, ch. 106, § 482; 1987, ch. 520, § 3.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Law Reviews.

Note: North Dakota’s Pharmacy Ownership Law: An Analysis of the Strictest Pharmacy Ownership Law in the United States, see 86 N.D. L. Rev. 355 (2010).

43-15-42.1. Penalties — Reinstatement — Criminal prosecutions — Judicial review.

  1. Upon the finding of the existence of grounds for discipline of any person holding, seeking, or renewing a permit or license under this chapter, the board may impose one or more of the following penalties:
    1. Suspension of the offender’s permit or license for a term to be determined by the board.
    2. Revocation of the offender’s permit or license.
    3. Restriction of the offender’s permit or license to prohibit the offender from performing certain acts or from engaging in the practice of pharmacy in a particular manner for a term to be determined by the board.
    4. Refusal to issue or renew offender’s permit or license.
    5. Placement of the offender or the offender’s permit or license under suspension and supervision by the board for a period to be determined by the board.
    6. Cancellation of the offender’s permit or license.
    7. Reprimand.
    8. Imposition of a fine not to exceed one thousand dollars for each offense involving diversion of controlled substances or a fine not to exceed five hundred dollars for any other offense, with the sanction that the permit or license may be suspended until the fine is paid to the board.
  2. Any person whose permit or license to practice pharmacy in North Dakota has been suspended, revoked, or restricted pursuant to this chapter, whether voluntarily or by action of the board, has the right, at reasonable intervals, to petition the board for reinstatement of such permit or license. A petition must be made in writing and in the form prescribed by the board. Upon investigation and hearing, the board may in its discretion grant or deny such petition, or it may modify its original finding to reflect any circumstances which have changed sufficiently to warrant such modifications.
  3. Nothing herein shall be construed as barring criminal prosecutions for violations of this chapter if such violations are deemed as criminal offenses in other statutes of North Dakota or of the United States.
  4. All final decisions by the board shall be subject to judicial review pursuant to chapter 28-32.

Source:

S.L. 1981, ch. 444, § 3; 1987, ch. 522, § 1; 1993, ch. 422, § 32.

43-15-42.2. Impaired pharmacists program.

  1. Any pharmaceutical peer review committee may report relevant facts to the board relating to the acts of any pharmacist in this state if it has knowledge relating to the pharmacist which, in the opinion of the peer review committee, might impair competency due to dependency on alcohol or drugs, abuse of alcohol or drugs, or due to physical or mental illness, or which might endanger the public health and safety or provide grounds for disciplinary action under chapter 43-15.
  2. Any committee of a professional association comprised primarily of pharmacists, its staff, or any district or local intervenor participating in a program established to aid pharmacists impaired by substance abuse or mental or physical illness may report in writing to the board the name of the impaired pharmacist together with the pertinent information relating to the impairment. The board may report to any committee of such professional association, or the association’s designated staff, information which it may receive with regard to any pharmacist who may be impaired by substance abuse or mental or physical illness.
  3. Upon a determination by the board that a report submitted by a peer review committee or professional association committee is without merit, the report must be expunged from the pharmacist’s individual record in the board’s office. A pharmacist or a pharmacist’s authorized representative may, on request, examine the pharmacist’s peer review or the pharmaceutical association’s committee report submitted to the board and place into the record a statement of reasonable length of the pharmacist’s view with respect to any information in the report.
  4. Notwithstanding the provisions of section 44-04-18, the records and proceedings of the board, compiled in conjunction with an impaired pharmacist peer review committee, are confidential and are not to be considered public records or open records unless the affected pharmacist so requests; provided, however, the board may disclose this confidential information only if any of the following apply:
    1. In a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order.
    2. To the pharmacist licensing or disciplinary authorities of other jurisdictions.
    3. Under an order of a court of competent jurisdiction.
    1. No employee or member of the board, peer review committee member, pharmaceutical association committee member, or pharmaceutical association district or local intervenor furnishing in good faith information, data, reports, or records for the purposes of aiding the impaired pharmacist may, by reason of furnishing the information, be liable for damages to any person.
    2. No employee or member of the board or the committee, staff, or intervenor program is liable for damages to any person for any action taken or recommendations made in good faith by the board, committee, or staff.

Source:

S.L. 1987, ch. 523, § 1.

43-15-42.3. Reporting requirements — Penalty.

A pharmacist, pharmacy permitholder, pharmacy intern, pharmacy technician, health care institution in the state, state agency, or law enforcement agency in the state having actual knowledge that a pharmacist, pharmacy intern, or pharmacy technician may have committed any of the grounds for disciplinary action provided by law or rules adopted by the board shall promptly report that information in writing to the state board of pharmacy. A pharmacist, pharmacy technician, or institution from which the pharmacist or pharmacy technician voluntarily resigns, or voluntarily limits that individual’s staff privileges, shall report the actions of the licensee or registrant to the state board of pharmacy if that action occurs while the licensee or registrant is under formal or informal investigation by the institution or a committee of the institution for any reason related to possible professional incompetence, unprofessional conduct, or mental or physical impairment. Upon receiving a report concerning a licensee or registrant, the board’s investigative committee may investigate any evidence that appears to show a licensee or registrant is committing, or may have committed, any of the grounds for disciplinary action provided by law or rules adopted by the board. A person required to report under this section who makes a report in good faith is not subject to criminal prosecution or civil liability for making the report. For purposes of any civil proceeding, the good faith of a person who makes the report under this section is presumed. A report to the impaired pharmacist program, the pharm-assist committee, of the North Dakota pharmacists association is considered reporting under this section. For purposes of this section, a person has actual knowledge if that person acquired the information by personal observation or under circumstances that cause that person to believe there exists a substantial likelihood that the information is correct. An agency or health care institution that violates this section is guilty of a class B misdemeanor. A pharmacist, pharmacy permitholder, pharmacy intern, or pharmacy technician who violates this section is guilty of a class B misdemeanor and is subject to administrative action by the state board of pharmacy as specified by law or by rule.

Source:

S.L. 2007, ch. 363, § 6.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15-42.4. Limitations on disciplinary actions.

The board may not take disciplinary action against a pharmacist based solely on the pharmacist dispensing ivermectin for the off-label treatment or prevention of severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2, or any mutation or viral fragments of SARS-CoV-2.This section does not limit the board from taking a disciplinary action on another basis, such as unlicensed practice, inappropriate documentation, or substandard care, or any basis that would in the board’s determination harm the patient.

Source:

S.L. 2021, 1st Sp. Sess. ch. 559, § 2, effective November 15, 2021.

43-15-43. Pharmacist negligently endangering life — Penalty.

Any pharmacist in this state, who in putting up any drug or medicine, willfully or negligently:

  1. Omits to label the drug or medicine;
  2. Puts an untrue label, stamp, or other designation of contents upon the box, bottle, or package containing the drug or medicine;
  3. Substitutes a different article for an article prescribed or ordered;
  4. Puts up a greater or less quantity of an article than that prescribed or ordered; or
  5. Deviates from the terms of the prescription or order in any manner,

in consequence of which human life is endangered, is guilty of a class A misdemeanor.

Source:

Pen. C. 1877, § 446; R.C. 1895, § 7302; R.C. 1899, § 7302; R.C. 1905, § 9042; C.L. 1913, § 9758; R.C. 1943, § 43-1543; S.L. 1975, ch. 106, § 483; 1979, ch. 467, § 15.

43-15-44. Penalty for violations.

Any person who willfully violates any of the provisions of this chapter for which another penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1907, ch. 182, § 31; C.L. 1913, § 505; S.L. 1927, ch. 211, § 9; R.C. 1943, § 43-1544; S.L. 1975, ch. 106, § 484.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Law Reviews.

Note: North Dakota’s Pharmacy Ownership Law: An Analysis of the Strictest Pharmacy Ownership Law in the United States, see 86 N.D. L. Rev. 355 (2010).

43-15-45. Costs of prosecution — Disciplinary proceedings.

In any order or decision issued by the board in resolution of a disciplinary proceeding, the board may direct any certificate holder, permitholder, or licenseholder, or any pharmacy or pharmacist found not in compliance, guilty, or in violation of one or more of the grounds set forth in subsection 1 of section 43-15-10, to pay the board a sum not to exceed the reasonable and actual costs of the investigation and prosecution of the case, with the sanction that the certificate of registration, permit, or license may be suspended until the costs are paid to the board.

Source:

S.L. 1907, ch. 182, § 32, C.L. 1913, § 506; R.C. 1943, § 43-1545; S.L. 1987, ch. 524, § 1.

CHAPTER 43-15.1 Wholesale Drug Distributors

43-15.1-01. Definitions.

As used in this chapter:

  1. “Board” means the state board of pharmacy.
  2. “Manufacturer” means any person engaged in manufacturing, preparing, propagating, compounding, processing, packaging, repackaging, or labeling of a prescription drug.
  3. “Pharmacy distributor” means any pharmacy licensed in this state or hospital pharmacy that is engaged in the delivery or distribution of prescription drugs either to any other pharmacy licensed in this state or to any other person or entity, including a wholesale drug distributor, engaged in the delivery or distribution of prescription drugs and involved in the actual, constructive, or attempted transfer of a drug in this state to other than the ultimate consumer, if the financial value of the drugs is equivalent to at least five percent of the total gross sales of the pharmacy distributor.
  4. “Prescription drug” means any drug required by federal or state law or regulation to be dispensed only by a prescription, including finished dosage forms and active ingredients subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act.
  5. “Wholesale drug distribution” means sale of prescription drugs to persons other than a consumer or patient. The term does not include:
    1. Intracompany sale, which is a sale between any division, subsidiary, parent, or affiliated or related company under the common ownership and control of a corporate entity.
    2. The purchase or other acquisition by a hospital pharmacy or other health care entity that is a member of a group purchasing organization of a drug for its own use from the group purchasing organization or from other hospital pharmacies or health care entities that are members of such organizations.
    3. The sale, purchase, or trade of a drug, or an offer to sell, purchase, or trade a drug, by a charitable organization described in section 501(c)(3) of the Internal Revenue Code of 1954 to a nonprofit affiliate of the organization to the extent otherwise permitted by law.
    4. The sale, purchase, or trade of a drug, or an offer to sell, purchase, or trade a drug, among hospital pharmacies or other health care entities that are under common control.
    5. The sale, purchase, or trade of a drug, or an offer to sell, purchase, or trade a drug, for emergency medical reasons.
    6. The sale, purchase, or trade of a drug, an offer to sell, purchase, or trade a drug, or the dispensing of a drug pursuant to a prescription.
    7. A transfer of prescription drugs by a retail pharmacy to another retail pharmacy to alleviate a temporary shortage.
    8. A manufacturer or a manufacturer’s sales representative or agent.
  6. “Wholesale drug distributor” means any person engaged in the wholesale drug distribution, including manufacturers; repackers; own-label distributors; jobbers; brokers; warehouses, including manufacturers’ and distributors’ warehouses, chain drug warehouses, and wholesale drug warehouses; independent wholesale drug traders; sales agents; prescription drug repackagers; physicians; dentists; veterinarians; birth control and other clinics; individuals; hospital pharmacies; nursing home pharmacies or their providers; health maintenance organizations and other health care providers; and retail and hospital pharmacies that conduct wholesale distributions. The term does not include any common carrier or individual hired solely to transport prescription drugs.

Source:

S.L. 1989, ch. 523, § 1.

Note.

Section 503(b) of the federal Food, Drug and Cosmetic Act, referred to in subsection (5), is compiled at 21 USCS § 353(b).

43-15.1-02. Prohibited drug purchase or receipt — Penalty.

No person may knowingly purchase or receive any prescription drug from any source other than a wholesale drug distributor, manufacturer, pharmacy distributor, pharmacy, or other person licensed pursuant to the laws of this state except when otherwise provided. A person violating this section is guilty of a class A misdemeanor. A second violation is a class C felony.

Source:

S.L. 1989, ch. 523, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15.1-03. Wholesale drug distributor advisory committee.

The board shall appoint a wholesale drug distributor advisory committee composed of three members. One member must be a representative of a pharmacy and may be a pharmacy distributor, but may not be an employee of the board. One member must be a representative of wholesale drug distributors. One member must be a representative of drug manufacturers. In making appointments, the board shall consider recommendations received from wholesale drug distributors, pharmacy distributors, and drug manufacturers and shall adopt rules that provide for solicitation of such recommendations. The advisory committee shall review and make recommendations to the board on the merit of rules of the board which deal with wholesale drug distributors, pharmacy distributors, and drug manufacturers. The board may not adopt any rule affecting wholesale drug distributors or pharmacy distributors without first submitting the proposed rule to the committee for review and comment.

Source:

S.L. 1989, ch. 523, § 3.

43-15.1-04. Wholesale drug distributor and pharmacy distributor licensing requirements — Penalty.

  1. No person may act as a wholesale drug distributor or pharmacy distributor without first obtaining an annual license to do so from the board and paying the annual fee required by the board.
  2. The board may grant a temporary license when the wholesale drug distributor or pharmacy distributor first applies for a license to operate within this state. A temporary license is valid until the board finds that the applicant meets the requirements for regular licensure.
  3. The licensee shall operate in a manner prescribed by law and according to the rules adopted by the board.
  4. The board may require a separate license for each facility directly or indirectly owned or operated by the same business entity within this state, or for a parent entity with divisions, subsidiaries, or affiliate companies within this state if operations are conducted at more than one location and there exists joint ownership and control among all the entities.
  5. An applicant for a license and a licensee shall satisfy the board that the applicant or licensee has and will continuously maintain:
    1. Adequate storage conditions and facilities;
    2. Minimum liability and other insurance as may be required under any applicable federal or state law;
    3. A viable security system that includes afterhours, central alarm, or comparable entry detection capability; restricted premises access; comprehensive employment applicant screening; and safeguards against all forms of employee theft;
    4. A system of records that describes all wholesale drug distributor and pharmacy distributor activities for at least the most recent two-year period and which is reasonably accessible in any inspection authorized by the board;
    5. Principals and persons, including officers, directors, primary shareholders, and key management executives, who must at all times demonstrate and maintain their capability of conducting business in conformity with sound financial practices as well as state and federal law;
    6. Complete, updated information, to be provided the board as a condition for obtaining and retaining a license, about each wholesale drug distributor to be licensed under this chapter, including pertinent licensee corporate, if applicable, or other ownership, principal, key personnel, and facilities information;
    7. Written policies and procedures that assure reasonable wholesale drug distributor and pharmacy distributor preparation for, protection against, and handling of any facility security or operation problems, including problems caused by natural disaster or government emergency; inventory inaccuracies or product shipping and receiving; outdated product or other unauthorized product control; appropriate disposition of returned goods; and product recalls;
    8. Sufficient inspection procedures for all incoming and outgoing product shipments; and
    9. Operations in compliance with all federal legal requirements applicable to wholesale drug distribution.
  6. An agent or employee of any licensed wholesale drug distributor or pharmacy distributor need not seek licensure under this section and may lawfully possess pharmaceutical drugs when acting in the usual course of business or employment.
  7. A person who violates this section is guilty of a class C felony.

All requirements by the board under this subsection must conform to wholesale drug distributor licensing guidelines formally adopted by the United States food and drug administration. In case of conflict between any wholesale drug distributor licensing requirement imposed by the board under this subsection and any wholesale drug distributor licensing guideline of the food and drug administration, the guideline controls.

Source:

S.L. 1989, ch. 523, § 4.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15.1-05. Out-of-state wholesale drug distributor and pharmacy distributor licensing requirements — Penalty.

  1. An out-of-state wholesale drug distributor or pharmacy distributor or a principal or agent of the distributor may not conduct any business in this state unless the distributor has obtained a license to do so from the board and paid the fee required by the board.
  2. Application for a license under this section must be made on a form furnished by the board.
  3. The issuance of a license under this section does not change or affect tax liability imposed by this state on any out-of-state wholesale drug distributor or pharmacy distributor.
  4. The board, by rule, may license out-of-state wholesale drug distributors or pharmacy distributors on the basis of reciprocity to the extent that an out-of-state wholesale drug distributor or pharmacy distributor:
    1. Possesses a valid license granted by another state pursuant to legal standards comparable to those of this state which must be met for obtaining a license under the laws of this state; and
    2. Shows that the other state would extend reciprocal treatment under its own laws to a wholesale drug distributor or pharmacy distributor of this state.
  5. A person who violates this section is guilty of a class C felony.

Source:

S.L. 1989, ch. 523, § 5.

43-15.1-06. License renewal procedures.

The board shall mail an application for license renewal to each licensee before the first day of the month in which the license expires. If application for renewal of the license, along with required fee, is not received by the board before the first day of the following month, the license expires on the last day of that month.

Source:

S.L. 1989, ch. 523, § 6.

43-15.1-07. Adoption of rules.

Every rule adopted by the board with respect to implementation of this chapter must conform to the wholesale drug distributor licensing guidelines formally adopted by the United States food and drug administration. In case of conflict between a rule adopted by the board and a guideline of the food and drug administration, the guideline controls.

Source:

S.L. 1989, ch. 523, § 7.

43-15.1-08. Violations of chapter — Effect on licensure.

If the board determines that a wholesale drug distributor or wholesale pharmacy distributor has committed an act or is engaging in a course of conduct which constitutes a clear and present danger to the public health and safety in this state, the board may restrict or suspend the wholesale drug distributor’s or pharmacy distributor’s license. The board has the burden of proving that a wholesale drug distributor or wholesale pharmacy distributor is a clear and present danger to the public health and safety.

Source:

S.L. 1989, ch. 523, § 8.

43-15.1-09. Inspection powers and access to wholesale drug distributor records — Penalty.

The board or a designee of the board may conduct inspections during normal business hours upon all open premises purporting or appearing to be used by a wholesale drug distributor or wholesale pharmacy distributor in this state. A distributor who provides adequate documentation of the most recent satisfactory inspection less than three years old by either the United States food and drug administration or a state agency determined to be comparable by the board is exempt from further inspection for a period of time determined by the board. This exemption does not bar the board from initiating an investigation pursuant to a complaint regarding a wholesale drug distributor or pharmacy distributor. A wholesale drug distributor may keep records at a central location apart from the principal office of the wholesale drug distributor or the location at which the drugs were stored and from which they were shipped; provided, that the records are made available for inspection within three business days of a request by the board. The records may be kept in any form permissible under federal law applicable to prescription drugs recordkeeping. A person who fails to provide a duly authorized person the right of entry as provided in this section is guilty of a class A misdemeanor for the first conviction and a class C felony for each subsequent conviction.

Source:

S.L. 1989, ch. 523, § 9.

43-15.1-10. Judicial enforcement.

Upon proper application by the board, a court of competent jurisdiction may grant an injunction, restraining order, or other order as may be appropriate to enjoin a person from offering to engage or engaging in the performance of any acts or practices for which a certificate of registration or authority, permit, or license is required by any applicable state law, including this chapter, upon a showing that the acts or practices were or are likely to be performed or offered to be performed without a certificate of registration or authority, permit, or license. An action authorized under this section is in addition to and not in lieu of any other penalty provided by law and may be brought concurrently with other actions to enforce this chapter.

Source:

S.L. 1989, ch. 523, § 10.

CHAPTER 43-15.2 Legend Drug Donation and Repository Program

43-15.2-01. Definitions.

In addition to the definitions under section 43-15-01, in this chapter unless the context otherwise requires:

  1. “Donor” means a person that donates to the program legend drugs, devices, or supplies needed to administer such drugs.
  2. “Participant” means a practitioner or pharmacy that has elected to participate in the program and accepts legend drugs, devices, and supplies from donors for the program.
  3. “Program” means the legend drug donation and repository program established under this chapter.
  4. “Supplies” means any supplies used in the administration of a legend drug.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-02. Administration.

  1. The state board of pharmacy shall establish and contract with a third party to administer a legend drug donation and repository program.
  2. The board may develop and maintain a participant registry for the program. A participant registry created under this subsection must include the name, address, and telephone number of the participants. A participant registry created under this subsection must be available through the board or on the board’s website.
  3. The board may cooperate with nongovernmental organizations to maintain a web-based list of legend drugs, devices, or supplies that have been donated and are available through the program and the participants from which the donated items may be available.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-03. Conditions for participation.

  1. A donor may donate legend drugs, devices, or supplies to the program through a practitioner or pharmacy that meets the criteria established for such participation. Legend drugs, devices, or supplies may not be donated directly to a specific patient and donated items may not be resold.
  2. The items donated to the program may be prescribed for use by an individual by a practitioner who is authorized by law to prescribe and only a participant may dispense donated items.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-04. Conditions for acceptance of a donation.

  1. A drug donated, prescribed, or dispensed under the program must be in the original, unopened, sealed, and tamper-evident unit dose packaging, except a drug packaged in single-unit doses may be accepted and dispensed if the outside packaging has been opened and the single-unit-dose package is unopened.
  2. A drug may not be accepted or dispensed under the program if the drug has reached its expiration date or if the drug is adulterated or misbranded as determined under subsection 3.
  3. Before being dispensed to an eligible individual, the legend drugs, devices, and supplies donated under the program must be inspected by a pharmacist to determine that the legend drugs, devices, and supplies are not adulterated or misbranded.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-05. Storage, distribution, and dispensing.

  1. A participant that accepts donated legend drugs, devices, or supplies under the program shall comply with all applicable provisions of state and federal law relating to the storage, distribution, and dispensing of the donated legend drugs, devices, or supplies.
  2. A participant may charge an individual a handling fee that does not exceed two hundred fifty percent of the Medicaid prescription dispensing fee for dispensing donated legend drugs, devices, or supplies under the program.
  3. A dispenser of donated legend drugs, devices, or supplies may not submit a claim or otherwise seek reimbursement from any public or private third-party payer for the cost of donated legend drugs, devices, or supplies dispensed to any eligible individual under the program. A public or private third-party payer is not required to provide reimbursement to a dispenser for the cost of donated legend drugs, devices, or supplies dispensed to any eligible individual under the program.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-06. Liability.

  1. A donor of legend drugs, devices, or supplies, or any participant in the program, that exercises reasonable care in donating, accepting, distributing, prescribing, and dispensing legend drugs, devices, or supplies under the program and the rules adopted to implement this chapter is immune from civil or criminal liability and from professional disciplinary action of any kind for any injury, death, or loss to personal property relating to such activities.
  2. In the absence of intentional misconduct, a pharmaceutical manufacturer is immune from civil or criminal liability for any claim, injury, death, or loss to person or property arising from transfer, donation, dispensing, or acceptance of any legend drugs, devices, or supplies under this chapter, including liability for failure to transfer or communicate product or consumer information regarding the transferred legend drugs, devices, or supplies as well as the expiration date of the legend drugs, devices, or supplies under the program.

Source:

S.L. 2007, ch. 366, § 1.

43-15.2-07. Recordkeeping.

  1. A participant shall retain separate records detailing the receipt, distribution, and dispensing of legend drugs, devices, and supplies under this program.
  2. The records of receipt must include:
    1. The name and address of the donor;
    2. The drug name and strength;
    3. The manufacturer of the legend drugs, devices, or supplies;
    4. The manufacturer lot number;
    5. The drug expiration date;
    6. The date received; and
    7. The quantity received.
  3. Records of distribution and dispensing must include:
    1. The name and address of the participant;
    2. The drug or device name;
    3. The drug strength;
    4. The quantity distributed;
    5. The identity of the manufacturer of the legend drugs, devices, or supplies;
    6. The manufacturer lot number;
    7. The expiration date;
    8. The date of distribution or dispensing; and
    9. The name and address of the individual to whom the donated item was distributed.
  4. Records of dispensing must include:
    1. The requirements for a prescription label; and
    2. The manufacturer’s lot number.

Source:

S.L. 2007, ch. 366, § 1.

CHAPTER 43-15.3 Wholesale Drug Pedigree

43-15.3-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Authentication” means to affirmatively verify before any wholesale distribution of a prescription drug occurs that each transaction listed on the pedigree has occurred.
  2. “Authorized distributor of record” means a wholesale distributor or a third-party logistics provider with whom a manufacturer has established an ongoing relationship to distribute the manufacturer’s prescription drug. An ongoing relationship is deemed to exist between the third-party logistics provider and the manufacturer or between the wholesale distributor and a manufacturer when the third-party logistics provider or the wholesale distributor, including any affiliated group of the wholesale distributor as defined in section 1504 of the Internal Revenue Code [26 U.S.C. 1504], complies with the following:
    1. The wholesale distributor or a third-party logistics provider has a written agreement currently in effect with the manufacturer evidencing the ongoing relationship; and
    2. The wholesale distributor or a third-party logistics provider is listed on the manufacturer’s current list of authorized distributors of record, which is updated by the manufacturer on no less than a monthly basis.
  3. “Board” means the state board of pharmacy.
  4. “Broker” means a party that mediates between a buyer and a seller the sale or shipment of prescription drugs, medical gases, or medical equipment.
  5. “Chain pharmacy warehouse” means a physical location for prescription drugs, medical gases, or medical equipment which acts as a central warehouse and performs intracompany sales or transfers of the drugs, gases, or equipment to a group of chain pharmacies that have the same common ownership and control.
  6. “Colicensed product” means a prescription drug, medical gas, or medical equipment in which two or more parties have the right to engage in the manufacturing or marketing or in the manufacturing and marketing of the drug, gas, or equipment.
  7. “Device” means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory which:
    1. Is recognized in the United States pharmacopeia or the official national formulary is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of disease, in humans or other animals, or is intended to affect the structure or any function of the body of humans or other animals;
    2. Does not achieve its primary intended purposes through chemical action within or on the body of a human or other animal; and
    3. Is not dependent upon being metabolized for the achievement of its primary intended purposes.
  8. “Drop shipment” means the sale of a prescription drug, medical gas, or medical equipment to a wholesale distributor by the manufacturer of the prescription drug, medical gas, or medical equipment or to that manufacturer’s colicensed product partner, that manufacturer’s third-party logistics provider, or that manufacturer’s exclusive distributor, under the terms of which the wholesale distributor or chain pharmacy warehouse takes title but not physical possession of the prescription drug, medical gas, or medical equipment and the wholesale distributor invoices the pharmacy or chain pharmacy warehouse, or other person authorized by law to dispense or administer the drug, gas, or equipment to a patient, and the pharmacy or chain pharmacy warehouse or other authorized person receives delivery of the prescription drug, medical gas, or medical equipment directly from the manufacturer, or that manufacturer’s third-party logistics provider, or that manufacturer’s exclusive distributor.
  9. “Durable medical equipment” means medical devices, equipment, or supplies that may be used in a residence, including oxygen and oxygen delivery systems and supplies, ventilators, respiratory disease management devices, continuous positive airway pressure (CPAP) devices, electronic and computerized wheelchairs and seating systems, apnea monitors, transcutaneous medical nerve stimulator (TENS) units, low air cutaneous pressure management devices, sequential compression devices, feeding pumps, home phototherapy devices, infusion delivery devices, distribution of medical gases to end users for human consumption, hospital beds, nebulizers, and other similar equipment as may be determined by the board by rule.
  10. “Facility” means a facility of a wholesale distributor where prescription drugs, medical gases, or medical equipment are stored, handled, repackaged, or offered for sale.
  11. “Manufacturer” means a person licensed or approved by the federal food and drug administration to engage in the manufacture of drugs, medical gases, or devices by manufacturing the drugs, gases, or devices at the person’s own facility or by contracting for the manufacturing by others.
  12. “Manufacturer’s exclusive distributor” means any person that contracts with a manufacturer to provide or coordinate warehousing, distribution, or other services on behalf of a manufacturer and which takes title to that manufacturer’s prescription drug, medical gases, or medical equipment but which does not have general responsibility to direct the sale or disposition of the manufacturer’s prescription drug, medical gas, or medical equipment. The manufacturer’s exclusive distributor must be licensed as a wholesale distributor under this chapter, and to be considered part of the normal distribution channel also must be an authorized distributor of record.
  13. “Medical device” means a product or equipment used to diagnose a disease or other condition in order to cure, treat, or prevent disease.
  14. “Medical equipment” means equipment prescribed or distributed by a practitioner used in the course of treatment of home care.
  15. “Medical gas” means any gaseous substance that meets medical purity standards and has application in a medical environment.
  16. “Normal distribution channel” means a chain of custody for a prescription drug which goes, directly or by drop shipment, from a manufacturer of the prescription drug, from that manufacturer to that manufacturer’s colicensed partner, from that manufacturer to that manufacturer’s third-party logistics provider, or from that manufacturer to that manufacturer’s exclusive distributor to:
    1. A pharmacy, to a patient or other designated person authorized by law to dispense or administer the drug to a patient;
    2. A wholesale distributor, to a pharmacy, to a patient or other designated person authorized by law to dispense or administer the drug to a patient;
    3. A wholesale distributor, to a chain pharmacy warehouse, to that chain pharmacy warehouse’s intracompany pharmacy, to a patient or other designated person authorized by law to dispense or administer the drug to a patient; or
    4. A chain pharmacy warehouse, to the chain pharmacy warehouse’s intracompany pharmacy, to a patient or other designated person authorized by law to dispense or administer the drug to a patient.
  17. “Outsourcing facility” means a facility at one geographic location or address which is engaged in anticipatory compounding of sterile drugs and complies with section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)].
  18. “Pedigree” means a document or an electronic file containing information that records each distribution of any given prescription drug.
  19. “Pharmacy distributor” means any pharmacy or hospital pharmacy licensed in this state which is engaged in the delivery or distribution of prescription drugs, medical gases, or medical equipment to any other pharmacy licensed in this state or to any other person, including a wholesale drug distributor, engaged in the delivery or distribution of prescription drugs, medical gases, or medical equipment and involved in the actual, constructive, or attempted transfer of a drug, gas, or equipment in this state to other than the ultimate consumer, when the financial value of the drugs, gases, or equipment is equivalent to at least five percent of the total gross sales of the pharmacy distributor.
  20. “Prescription drug” means any drug, including any biological product, except for blood and blood components intended for transfusion or biological products that are also medical devices, required by federal law, including federal regulation, to be dispensed only by a prescription, including finished dosage forms and bulk drug substances subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)].
  21. “Repackage” means repackaging or otherwise changing the container, wrapper, or labeling to further the distribution of a prescription drug. The term does not include actions completed by the pharmacists responsible for dispensing product to the patient.
  22. “Repackager” means a person that repackages.
  23. “Third-party logistics provider” means a person that contracts with a wholesale distributor or a prescription drug, medical gas, or medical equipment manufacturer to provide or coordinate warehousing, wholesale distribution, or other services on behalf of a manufacturer, but does not take title to the prescription drug, medical gas, or medical equipment or have general responsibility to direct the prescription drug’s, medical gas’s, or medical equipment’s sale or disposition. The third-party logistics provider must be licensed independently under this chapter and to be considered part of the normal distribution channel must also be an authorized distributor of record.
  24. “Trace” means the capability to identify the historical locations, the records of ownership, and the packaging hierarchy for a particular traceable item. “Trace” answers questions such as where has the item been, who previously owned the item, and in what packaging hierarchy did the product exist at various locations.
  25. “Track” means the capability to identify the current, and at the time of shipment the intended future, location, ownership, and packaging hierarchy of a traceable item through the supply chain as the traceable item moves between parties. “Track” addresses both forward and reverse logistics operations. “Track” answers questions such as where is the item currently, who is the next intended recipient, and what is the current packaging hierarchy of the item.
  26. “Virtual distributor” means a person that arranges for the distribution of a drug or device and which may or may not take actual possession of the drug or device but contracts with others for the distribution, purchase, and sale.
  27. “Virtual manufacturer” means a person that owns the new drug application or abbreviated new drug application for a drug or device and which contracts with others for the actual manufacturing of the drug or device.
  28. “Wholesale distribution” means distribution of prescription drugs, medical gases, or medical equipment to persons other than a consumer or patient. The term does not include:
    1. Intracompany sales of prescription drugs, medical gases, or medical equipment, meaning any transaction or transfer between any division, subsidiary, parent or affiliated or related company under common ownership and control of a corporate entity, or any transaction or transfer between colicensees of a colicensed product.
    2. The sale, purchase, distribution, trade, or transfer of a prescription drug, medical gas, or medical equipment or the offer to sell, purchase, distribute, trade, or transfer a prescription drug, medical gas, or medical equipment for emergency medical reasons.
    3. The purchase or other acquisition by a hospital or other health care entity that is a member of a group purchasing organization of a drug, gas, or equipment for the hospital’s or health care entity’s own use from the group purchasing organization or from other hospitals or health care entities that are members of such organizations.
    4. The sale, purchase, or trade of a drug, gas, or equipment or an offer to sell, purchase, or trade a drug, gas, or equipment by a charitable organization described in section 501(c)(3) of the Internal Revenue Code of 1954 to a nonprofit affiliate of the organization to the extent otherwise permitted by law.
    5. The sale, purchase, or trade of a drug, gas, or equipment or an offer to sell, purchase, or trade a drug, gas, or equipment among hospitals or other health care entities that are under common control.
    6. The distribution of prescription drug samples by manufacturers’ representatives.
    7. Drug returns, when conducted by a hospital, health care entity, or charitable institution in accordance with title 21, Code of Federal Regulations, section 203.23.
    8. The sale of minimal quantities of prescription drugs, medical gases, or medical equipment by retail pharmacies to licensed practitioners for office use.
    9. The sale, purchase, or trade of a drug, gas, or equipment; an offer to sell, purchase, or trade a drug, gas, or equipment; or the dispensing of a drug, gas, or equipment pursuant to a prescription.
    10. The sale, transfer, merger, or consolidation of all or part of the business of a pharmacy from or with another pharmacy, whether accomplished as a purchase and sale of stock or business assets.
    11. The sale, purchase, distribution, trade, or transfer of a prescription drug, medical gas, or medical equipment from one authorized distributor of record to one additional authorized distributor of record when the manufacturer has stated in writing to the receiving authorized distributor of record that the manufacturer is unable to supply such prescription drug, medical gas, or medical equipment and the supplying authorized distributor of record states in writing that the prescription drug, medical gas, or medical equipment being supplied had until that time been exclusively in the normal distribution channel.
    12. The delivery of, or offer to deliver, a prescription drug, medical gas, or medical equipment by a common carrier solely in the common carrier’s usual course of business of transporting prescription drugs, medical gases, or medical equipment and the common carrier does not store, warehouse, or take legal ownership of the prescription drug, medical gas, or medical equipment.
    13. The sale or transfer from a retail pharmacy or chain pharmacy warehouse of expired, damaged, returned, or recalled prescription drugs, medical gases, or medical equipment to the original manufacturer or to a third-party returns processor.
  29. “Wholesale distributor” means anyone engaged in the wholesale distribution of prescription drugs, medical gases, or medical equipment, including manufacturers; virtual manufacturers; repackagers; own-label distributors; private-label distributors; jobbers; brokers; virtual distributors and warehouses, including manufacturers’ and distributors’ warehouses; manufacturers’ exclusive distributors; authorized distributors of record; drug, gas, or equipment wholesalers or distributors; independent wholesale drug, gas, or equipment traders; specialty wholesale distributors; retail pharmacies that conduct wholesale distribution; and chain pharmacy warehouses that conduct wholesale distribution. To be considered part of the normal distribution channel, such wholesale distributor must also be an authorized distributor of record.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 1; 2015, ch. 296, § 1, effective July 1, 2015.

43-15.3-02. Rulemaking authority.

The board shall adopt rules that conform with wholesale distributor licensing guidelines adopted by the federal food and drug administration, including rules necessary to carry out the purposes of this chapter, that incorporate and set detailed standards for meeting each of the license prerequisites set forth in this chapter, and that establish reasonable fees to carry out this chapter.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 2.

43-15.3-03. Wholesale distributor licensing requirement — Minimum requirements for licensure.

  1. A wholesale distributor that engages in the wholesale distribution of prescription drugs, medical gases, or medical equipment shall pay the annual fee required by the board, must be licensed by the board under this chapter, and must be properly licensed in any other state in which the wholesale distributor engages in the distribution of prescription drugs, medical gases, or medical equipment before engaging in wholesale distributions of wholesale prescription drugs, medical gases, or medical equipment in this state. The licensee shall operate in a manner prescribed by law and according to rules adopted by the board. However, information and qualification requirements for licensure beyond that required by federal law or regulation do not apply to manufacturers distributing the manufacturers’ own United States food and drug administration-approved drugs, gases, or equipment, unless particular requirements are deemed necessary and appropriate following rulemaking. The board may grant a temporary license when the wholesale distributor or pharmacy distributor first applies for a license to operate within this state. A temporary license is valid until the board finds that the applicant meets the requirements for regular licensure.
  2. A person may not engage in wholesale distributions of prescription drugs without obtaining and maintaining accreditation or certification from the national association of boards of pharmacy’s verified accredited wholesale distributor or an accreditation body approved by the board, obtaining and maintaining a license issued by the board, and paying fees as may be required by the board.
  3. The board shall require the following minimum information from each wholesale distributor applying to get a license under subsection 1:
    1. The name, full business address, and telephone number of the licensee.
    2. All trade or business names used by the licensee.
    3. Addresses, telephone numbers, and the names of contact persons for all facilities used by the licensee for the storage, handling, and distribution of prescription drugs.
    4. The type of ownership or operation.
    5. The name of every owner and operator of the licensee, including:
      1. If an individual, the name of the individual;
      2. If a partnership, the name of each partner, and the name of the partnership;
      3. If a corporation, the name and title of each corporate officer and director, the corporate names, and the name of the state of incorporation; and
      4. If a sole proprietorship, the full name of the sole proprietor and the name of the business entity.
    6. A list of all licenses and permits issued to the applicant by any other state that authorizes the applicant to purchase or possess prescription drugs, medical gases, or medical equipment.
    7. The name of the applicant’s designated representative for the facility and for a prescription drug wholesaler applicant, the personal information statement and fingerprints required pursuant to subdivision h for the individual identified as the prescription drug wholesaler applicant’s designated representative for the facility.
    8. Each individual identified by a prescription drug wholesaler applicant as a designated representative for a facility and therefore required by subdivision g to provide a personal information statement and fingerprints shall provide the following information to the state:
      1. The individual’s places of residence for the past seven years;
      2. The individual’s date and place of birth;
      3. The individual’s occupations, positions of employment, and offices held during the past seven years;
      4. The principal business and address of any business, corporation, or other organization in which each office of the individual was held or in which each occupation or position of employment was carried on;
      5. Whether the individual has been, during the past seven years, the subject of any proceeding for the revocation of any license or any criminal violation and, if so, the nature of the proceeding and the disposition of the proceeding;
      6. Whether, during the past seven years, the individual has been enjoined, either temporarily or permanently, by a court of competent jurisdiction from violating any federal or state law regulating the possession, control, or distribution of prescription drugs or criminal violations, together with details concerning any of those events;
      7. A description of any involvement by the individual with any business, including any investments, other than the ownership of stock in a publicly traded company or mutual fund, during the past seven years, which manufactured, administered, prescribed, distributed, or stored pharmaceutical products and any lawsuits in which the businesses were named as a party;
      8. A description of any misdemeanor or felony criminal offense of which the individual, as an adult, was found guilty, regardless of whether adjudication of guilt was withheld or whether the individual pled guilty or nolo contendere. If the individual indicates that a criminal conviction is under appeal and submits a copy of the notice of appeal of that criminal offense, the applicant must, within fifteen days after the disposition of the appeal, submit to the state a copy of the final written order of disposition; and
      9. A photograph of the individual taken in the previous one hundred eighty days.
  4. The information required under subsection 3 must be provided under oath.
  5. The board may not issue a wholesale distributor license to an applicant, unless the board:
    1. Inspects or appoints a third party recognized by the board for the purpose of inspecting the wholesale distribution operations of the facility before initial licensure and continues to inspect periodically thereafter in accordance with a schedule to be determined by the board, but not less than every three years. Manufacturing facilities are exempt from inspection by the board if the manufacturing facilities are currently registered with the federal food and drug administration in accordance with section 510 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 310]; and
    2. Determines that the designated representative meets the following qualifications:
      1. Is at least twenty-one years of age;
      2. Has been employed full time for at least three years in a pharmacy or with a wholesale distributor in a capacity related to the dispensing and distribution of, and recordkeeping relating to, prescription drugs, medical gases, or medical equipment;
      3. Is employed by the applicant full time in a managerial level position;
      4. Is actively involved in and aware of the actual daily operation of the wholesale distributor;
      5. Is physically present at the facility of the applicant during regular business hours, except when the absence of the designated representative is authorized, including sick leave and vacation leave;
      6. Is serving in the capacity of a designated representative for only one applicant at a time, except where more than one licensed wholesale distributor is colocated in the same facility and the wholesale distributors are members of an affiliated group, as defined in section 1504 of the Internal Revenue Code [26 U.S.C. 1504];
      7. Does not have any convictions under any federal, state, or local laws relating to wholesale or retail prescription drug, medical gas, or medical equipment distribution or distribution of controlled substances; and
      8. Does not have any felony conviction under federal, state, or local laws.
  6. The board shall submit the fingerprints provided by an individual with a license application for a statewide and nationwide criminal history background record check. The nationwide criminal history background record check must be conducted in the manner provided in section 12-60-24. All costs associated with the background check are the responsibility of the applicant.
  7. The board shall require every wholesale prescription drug distributor applying for a license to submit a bond of at least one hundred thousand dollars, or other equivalent means of security acceptable to the state, including an irrevocable letter of credit or a deposit in a trust account or financial institution. Obtaining and maintaining accreditation or certification from the national association of boards of pharmacy’s verified accredited wholesale distributor satisfies this requirement. A chain pharmacy warehouse that is engaged only in intracompany transfers is not subject to the bond requirement. The purpose of the bond is to secure payment of any fines or penalties imposed by the state and any fees and costs incurred by the state regarding that license which are authorized under state law and which the licensee fails to pay thirty days after the fines, penalties, or costs become final. The state may make a claim against the bond or security until one year after the licensee’s license ceases to be valid. A single bond may cover all facilities operated by the applicant in the state. Any chain pharmacy warehouse that is engaged only in intracompany transfers is exempt from the bond requirement.
  8. If a wholesale distributor distributes prescription drugs, medical gases, or medical equipment from more than one facility, the wholesale distributor shall obtain a license for each facility.
  9. If a manufacturer manufactures prescription drugs, medical gases, or medical equipment in more than one facility but does not engage in wholesale distribution to North Dakota from those facilities, the manufacturer is not required to obtain a license for each facility.
  10. The board shall mail or electronic mail a notice for license renewal to each licensee before the first day of the month in which the license expires. If application for renewal of the license, along with the required fee, is not received by the board before the first day of the following month, the license expires on the last day of that month. Timely renewal is the responsibility of the licensee.
  11. In accordance with each licensure renewal, the board shall make available on the board’s website for each wholesale distributor licensed under this section the information that the wholesale distributor provided pursuant to subsection 3. Within thirty days of receiving the notice, the wholesale distributor shall identify and state under oath to the state licensing authority all changes or corrections to the information that was provided under subsection 3. Changes in, or corrections to, any information in subsection 3 must be submitted to the board as required by that authority. The board may suspend, revoke, or refuse to renew the license of a wholesale distributor if the board determines that the wholesale distributor no longer qualifies for the license issued under this section.
  12. The designated representative identified pursuant to subdivision g of subsection 3 must receive and complete continuing training in applicable federal and state laws governing wholesale distribution of prescription drugs, medical gases, or medical equipment.
  13. Information provided under subdivision h of subsection 3 may not be disclosed to any person other than a government agency that needs the information for licensing or monitoring purposes.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 3.

43-15.3-04. Requirements to distribute prescription drugs, medical gases, or medical equipment.

  1. A person may not engage in wholesale distributions of prescription drugs without obtaining and maintaining accreditation or certification from the national association of boards of pharmacy’s verified accredited wholesale distributor or an accreditation body approved by the board under subsection 4, obtaining and maintaining a license issued by the board, and paying any reasonable fee required by the board.
  2. The board may not issue or renew the license of a wholesale distributor that does not comply with this chapter. The board shall require a separate license for each facility or location where wholesale distribution operations are conducted. An agent or employee of any licensed wholesale distributor does not need a license and may lawfully possess pharmaceutical drugs, medical gases, or medical equipment when acting in the usual course of business or employment. The issuance of a license under this chapter does not affect tax liability imposed by the tax department on any wholesale distributor.
  3. An out-of-state wholesale distributor or pharmacy distributor or a principal or agent of the distributor may not conduct business in this state unless the distributor has obtained the necessary license from the board, paid the fee required by the board, and registered with the secretary of state. Application for a license must be made on a form furnished by the board and when submitted by the applicant to the board must include a copy of the certificate of authority from the secretary of state. The issuance of a license under this section does not affect tax liability imposed by the tax department on any out-of-state wholesale distributor or pharmacy distributor. The board may adopt rules that permit out-of-state wholesale distributors to obtain a license on the basis of reciprocity if an out-of-state wholesale distributor possesses a valid license granted by another state and the legal standards for licensure in the other state are comparable to the standards under this chapter and the other state extends reciprocity to wholesale drug distributors licensed in this state. However, if the requirements for licensure under this chapter are more restrictive than the standards of the other state, the out-of-state wholesale distributor shall comply with the additional requirements of this chapter to obtain a license under this chapter.
  4. The board may adopt rules to approve an accreditation body to evaluate a wholesale distributor’s operations to determine compliance with professional standards, this chapter, and any other applicable law, and perform inspections of each facility and location where wholesale distribution operations are conducted by the wholesale distributor.
  5. The board or a designee of the board may conduct inspections during normal business hours upon all open premises purporting or appearing to be used by a wholesale distributor or pharmacy distributor in this state. A distributor that provides adequate documentation of the most recent satisfactory inspection less than three years old by the United States food and drug administration is exempt from further inspection for a period of time determined by the board. This exemption does not bar the board from initiating an investigation pursuant to a complaint regarding a wholesale distributor or pharmacy distributor. A wholesale distributor or pharmacy distributor may keep records at a central location apart from the principal office of the wholesale distributor or pharmacy distributor or the location at which the drugs are stored and from which they were shipped, provided that the records are made available for inspection within three business days of a request by the board. The records may be kept in any form permissible under federal law applicable to prescription recordkeeping.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 4.

43-15.3-05. Restrictions on transactions.

  1. A wholesale distributor shall receive prescription drug returns or exchanges from a pharmacy or chain pharmacy warehouse under the terms and conditions of the agreement between the wholesale distributor and the pharmacy or between the wholesale distributor and the chain pharmacy warehouse, including the returns of expired, damaged, and recalled pharmaceutical product to either the original manufacturer or a third-party returns processor, and the returns or exchanges are not subject to the pedigree requirement of section 43-15.3-06 if they are exempt from pedigree under the federal food and drug administration’s currently applicable guidance for the federal Prescription Drug Marketing Act of 1987 [Pub. L. 100-293; 102 Stat. 95]. Wholesale distributors and pharmacies must ensure that the aspects of this operation are secure and do not permit the entry of adulterated and counterfeit product.
  2. A manufacturer or wholesale distributor shall furnish prescription drugs only to a person licensed by the appropriate state licensing authorities. Before furnishing prescription drugs to a person not known to the manufacturer or wholesale distributor, the manufacturer or wholesale distributor shall affirmatively verify that the person is legally authorized to receive the prescription drugs by contacting the appropriate state licensing authorities.
  3. Prescription drugs furnished by a manufacturer or wholesale distributor may be delivered only to the premises listed on the license. The manufacturer or wholesale distributor may furnish prescription drugs to an individual or agent of that individual at the premises of the manufacturer or wholesale distributor if:
    1. The identity and authorization of the recipient are properly established; and
    2. This method of receipt is employed only to meet the immediate needs of a particular patient of the authorized individual.
  4. Prescription drugs may be furnished to a hospital pharmacy receiving area if a pharmacist or authorized receiving personnel signs, at the time of delivery, a receipt showing the type and quantity of the prescription drug so received. Any discrepancy between receipt and the type and quantity of the prescription drug actually received must be reported to the delivering manufacturer or wholesale distributor by the next business day after the delivery to the pharmacy receiving area.
  5. A manufacturer or wholesale distributor may not accept payment for or allow the use of a person’s credit to establish an account for the purchase of prescription drugs from any individual other than the owner of record, the chief executive officer, or the chief financial officer listed on the license of an individual legally authorized to receive prescription drugs. Any account established for the purchase of prescription drugs must bear the name of the licensee.

Source:

S.L. 2007, ch. 367, § 2.

Note

The federal Prescription Drug Marketing Act of 1987, referred to in subsection (1), may be found at 21 U.S.C.S. 301, 331, 333, 353, and 381.

43-15.3-06. Pedigree.

  1. Each person who is engaged in wholesale distribution of prescription drugs, including repackagers but excluding the original manufacturer of the finished form of the prescription drug which leave or have ever left the normal distribution channel, before each wholesale distribution of the drug, must provide a pedigree to the person who receives the drug.
    1. A retail pharmacy or chain pharmacy warehouse must comply with the requirements of this section only if the pharmacy or chain pharmacy warehouse engages in wholesale distribution of prescription drugs.
    2. The board shall determine by July 1, 2009, a targeted implementation date for electronic track and trace pedigree technology. The determination must be based on consultation with manufacturers, distributors, and pharmacies responsible for the sale and distribution of prescription drug products in this state. After consultation with interested stakeholders and before implementation of the electronic track and trace pedigree technology, the board must determine that the technology is universally available across the entire prescription pharmaceutical supply chain. The implementation date for the mandated electronic track and trace pedigree technology may not be before July 1, 2010, and may be extended by the board in one-year increments if it appears the technology is not universally available across the entire prescription pharmaceutical supply chain.
  2. Each person engaged in the wholesale distribution of a prescription drug, including a repackager but excluding the original manufacturer of the finished form of the prescription drug, that is provided a pedigree for a prescription drug and attempts to further distribute that prescription drug shall verify affirmatively before any distribution of a prescription drug occurs that each transaction listed on the pedigree has occurred.
  3. The pedigree must:
    1. Include all necessary identifying information concerning each sale in the chain of distribution of the product from the manufacturer, or the manufacturer’s third-party logistics provider, colicensed product partner, or manufacturer’s exclusive distributor, through acquisition and sale by any wholesale distributor or repackager, until final sale to a pharmacy or other person dispensing or administering the drug. At minimum, the necessary chain of distribution information must include:
      1. The name, address, telephone number, and if available, the electronic mail address, of each owner of the prescription drug, and each wholesale distributor of the prescription drug;
      2. The name and address of each location from which the product was shipped, if different from the owner’s;
      3. The transaction dates; and
      4. A certification that each recipient has authenticated the pedigree.
    2. At minimum, the pedigree must also include the:
      1. Name of the prescription drug;
      2. Dosage form and strength of the prescription drug;
      3. Size of the container;
      4. Number of containers;
      5. Lot number of the prescription drug;
      6. Name of the manufacturer of the finished dosage form; and
      7. National drug code (NDC) number.
  4. Each pedigree or electronic file must be:
    1. Maintained by the purchaser and the wholesale distributor for three years from the date of sale or transfer; and
    2. Available for inspection or use within five business days upon a request of an authorized officer of the law or the board.
  5. The board shall adopt rules and a form relating to the requirements of this section.

Source:

S.L. 2007, ch. 367, § 2.

43-15.3-07. Order to cease distribution.

  1. The board shall issue an order requiring the appropriate person, including the distributors or retailers of the drug, gas, or equipment to immediately cease distribution of the drug, gas, or equipment within the state if the board finds there is a reasonable probability:
    1. A wholesale distributor, other than a manufacturer, has violated a provision in this chapter or falsified a pedigree or sold, distributed, transferred, manufactured, repackaged, handled, or held a counterfeit prescription drug, medical gas, or medical equipment intended for human use;
    2. The prescription drug, medical gas, or medical equipment at issue as a result of a violation in subdivision a could cause serious, adverse health consequences or death; and
    3. Other procedures would result in unreasonable delay.
  2. An order under subsection 1 must provide the individual subject to the order with an opportunity for an informal hearing, to be held not later than ten days after the date of the issuance of the order, on the actions required by the order. If, after providing an opportunity for such a hearing, the board determines that inadequate grounds exist to support the actions required by the order, the board shall vacate the order.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 5.

43-15.3-08. Prohibited acts — Penalty.

  1. Except as otherwise provided under section 43-15.3-09, it is a class B misdemeanor for a person to perform or cause the performance of or aid and abet any of the following acts in this state:
    1. Failing to obtain a license under this chapter or operating without a valid license when a license is required by this chapter.
    2. If the requirements of subsection 1 of section 43-15.3-05 are applicable and are not met, purchasing or otherwise receiving a prescription drug, medical gas, or medical equipment from a pharmacy.
    3. If a state license is required under subsection 2 of section 43-15.3-05, selling, distributing, or transferring a prescription drug, medical gas, or medical equipment to a person that is not authorized under the law of the jurisdiction in which the person receives the prescription drug, medical gas, or medical equipment to receive the prescription drug, medical gas, or medical equipment.
    4. Failing to deliver prescription drugs, medical gases, or medical equipment to specified premises, as required by subsection 3 of section 43-15.3-05.
    5. Accepting payment or credit for the sale of prescription drugs, medical gases, or medical equipment in violation of subsection 5 of section 43-15.3-05.
    6. Failing to maintain or provide pedigrees as required by this chapter.
    7. Failing to obtain, pass, or authenticate a pedigree, as required by this chapter.
    8. Providing the board or any of the board’s representatives or any federal official with false or fraudulent records or making false or fraudulent statements regarding any matter within the provisions of this chapter.
    9. Obtaining or attempting to obtain a prescription drug, medical gas, or medical equipment by fraud, deceit, misrepresentation, or engaging in misrepresentation or fraud in the distribution of a prescription drug, medical gas, or medical equipment.
    10. Except for the wholesale distribution by manufacturers of a prescription drug, medical gas, or medical equipment that has been delivered into commerce pursuant to an application approved under federal law by the federal food and drug administration, manufacturing, repacking, selling, transferring, delivering, holding, or offering for sale any prescription drug, medical gas, or medical equipment that is adulterated, misbranded, counterfeit, suspected of being counterfeit, or has otherwise been rendered unfit for distribution.
    11. Except for the wholesale distribution by a manufacturer of a prescription drug, medical gas, or medical equipment that has been delivered into commerce under an application approved under federal law by the federal food and drug administration, adulterating, misbranding, or counterfeiting any prescription drug, medical gas, or medical equipment.
    12. Receiving any prescription drug, medical gas, or medical equipment that is adulterated, misbranded, stolen, obtained by fraud or deceit, counterfeit, or suspected of being counterfeit, and the delivery or proffered delivery of such drug, gas, or equipment for pay or otherwise.
    13. Altering, mutilating, destroying, obliterating, or removing the whole or any part of the labeling of a prescription drug, medical gas, or medical equipment or the commission of any other act with respect to a prescription drug, medical gas, or medical equipment which results in the prescription drug, medical gas, or medical equipment being misbranded.
  2. The prohibited acts in subsection 1 do not include a prescription drug, medical gas, or medical equipment manufacturer or agent of a prescription drug, medical gas, or medical equipment manufacturer obtaining or attempting to obtain a prescription drug, medical gas, or medical equipment for the sole purpose of testing the prescription drug, medical gas, or medical equipment for authenticity.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 6.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15.3-09. Penalties.

  1. The board may impose the following sanctions if, after a hearing under chapter 28-32, the board finds that a person violated section 43-15.3-08:
    1. Revoke, suspend, or limit the wholesale distributor’s license issued under this chapter if the person is a wholesale distributor; or
    2. Assess a civil penalty against the person. A civil penalty assessed may not exceed ten thousand dollars per violation.
  2. The board, upon a showing of a violation of this chapter, may revoke, suspend, or limit a license issued under this chapter after a proceeding under chapter 28-32. After a proceeding under chapter 28-32, the board may assess a civil penalty against a licensed wholesale distributor of not more than ten thousand dollars for each occurrence. If the licensed wholesale distributor fails to pay the civil penalty within the time specified by the board, the board may suspend the license without additional proceedings.
  3. Upon application by the board, a court may grant an injunction, a restraining order, or other order to enjoin a person from offering to engage or engaging in the performance of any practices for which a permit or license is required by any applicable federal or state law including this chapter, upon a showing that the practices were or are likely to be performed or offered to be performed without a permit or license. An action brought under this subsection must be commenced either in the county where the conduct occurred or is likely to occur or in the county in the state where the defendant resides. An action brought under this subsection is in addition to any other penalty provided by law and may be brought concurrently with other actions to enforce this chapter.
  4. A person that knowingly purchases or receives a prescription drug, medical gas, or medical equipment through any source other than a person licensed under this chapter, including a wholesale distributor, manufacturer, pharmacy distributor, or pharmacy commits a class A misdemeanor. A subsequent unrelated violation of this subsection is a class C felony.
  5. A person that knowingly fails to provide a duly authorized individual the right of entry as provided in subsection 5 of section 43-15.3-04 is guilty of a class A misdemeanor for the first conviction and a class C felony for each subsequent conviction.
  6. A person that knowingly or intentionally engages in the wholesale distribution of a prescription drug, medical gas, or medical equipment without a license issued under this chapter commits a class C felony. A person is guilty of a class C felony if that person engages in the wholesale distribution of a prescription drug and with intent to defraud or deceive fails to obtain or deliver to another person a complete and accurate required pedigree concerning a prescription drug before obtaining the prescription drug from another person or transferring the prescription drug to another person or falsely swears or certifies that the person has authenticated any documents to the wholesale distribution of prescription drugs.
  7. A person is guilty of a class C felony if that person engages in the wholesale distribution of a prescription drug, medical gas, or medical equipment and knowingly or intentionally:
    1. Destroys, alters, conceals, or fails to maintain a complete and accurate required pedigree concerning a prescription drug in the person’s possession;
    2. Purchases or receives prescription drugs, medical gases, or medical equipment from a person not authorized to distribute prescription drugs, medical gases, or medical equipment in wholesale distribution;
    3. Sells, barters, brokers, or transfers a prescription drug, medical gas, or medical equipment to a person not authorized to purchase the prescription drug, medical gas, or medical equipment in the jurisdiction in which the person receives the prescription drug, medical gas, or medical equipment in a wholesale distribution;
    4. Forges, counterfeits, or falsely creates a pedigree;
    5. Falsely represents a factual matter contained in a pedigree; or
    6. Fails to record material information required to be recorded in a pedigree.
  8. A person is guilty of a class C felony if that person engages in the wholesale distribution of a prescription drug and possesses a required pedigree concerning a prescription drug, knowingly or intentionally fails to authenticate the matters contained in the pedigree as required, and distributes or attempts to further distribute the prescription drug.

Source:

S.L. 2007, ch. 367, § 2; 2013, ch. 322, § 7.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15.3-10. Retail medical gas retailers — Reciprocity.

  1. A person may not sell or deliver medical gases and related medical equipment directly to a consumer unless licensed by the board as a retail medical gas retailer.
    1. As a term of licensure under this section, a licensee shall employ or contract with an in-state licensed respiratory therapist or other health care professional authorized by that professional’s practice act to prescribe or administer the medical gases and related medical equipment. The applicant shall furnish on the application the name and license number of the individual or licensee the applicant employees or with which the applicant contracts. Within thirty days of a change, a retailer shall provide the board with notice of any change in the licensee.
    2. A retail medical gas retailer may sell or deliver to a patient’s home medical gases and related equipment in accordance with a practitioner’s prescription or drug order. The retail medical gas retailer shall keep the original drug order or an electronic copy of each drug order at the licensed location or must have available for inspection an electronic copy of the original drug order or electronic copy of the drug order. A prescription or drug order is not valid after one year, except a prescription or order for maintenance equipment may be perpetual. A retail medical gas retailer shall maintain a prescription or drug order for five years.
  2. An out-of-state retail medical gas retailer or a principal or agent of the retailer may not conduct business in this state unless the retailer is licensed by the board as a retail medical gas retailer, paid the fee required by the board, and is registered with the secretary of state. An applicant shall submit an application for a license on a form furnished by the board and the application must be accompanied by a copy of the certificate of authority from the secretary of state. The issuance of a license under this section does not change or affect tax liability imposed by this state on an out-of-state medical gas retailer.
  3. The board may adopt rules that permit an out-of-state retail medical gas retailer to obtain a license on the basis of reciprocity if the retailer possesses a valid license granted by another jurisdiction and the legal standards for licensure in the other jurisdiction are comparable to the standards under this chapter and if the other jurisdiction extends reciprocity to retail medical gas retailers licensed in this state. However, if the requirements for licensure under this chapter are more restrictive than the standards of the other jurisdiction, the out-of-state retail medical gas retailer shall comply with the additional requirements of this chapter to obtain a license under this chapter.

Source:

S.L. 2013, ch. 322, § 8.

43-15.3-11. Retail durable medical equipment retailers — Reciprocity.

  1. A person may not sell or deliver durable medical equipment directly to a consumer unless licensed by the board as a retail durable medical equipment retailer.
    1. As a term of licensure under this section, a licensee shall employ or contract with an in- state licensed health care professional authorized by that professional’s practice act to prescribe or administer the durable medical equipment. For purposes of this section, a licensed health care professional may include a respiratory therapist, physical therapist, pharmacist, registered nurse, licensed practical nurse, advanced practice registered nurse, physician assistant, and occupational therapist.
      1. The licensed health care professional must be on staff to oversee and provide custom orthotics and prosthetics. The board shall establish certification requirements for a qualified health care professional which may include certification through the American board for certification in orthotics and prosthetics or the board for certification in orthotics as a certified orthotist, certified prosthetist, certified prosthetist orthotist, certified orthotic fitter, certified mastectomy fitter, or certified pedorthist.
      2. The licensed health care professional must be on staff to oversee and provide complex rehabilitation products and services for seating and mobility systems. The board shall establish certification requirements for a qualified health care professional which may include certification through the rehabilitation engineering and assistive technology society of North America as an assistive technology professional.
      3. The applicant shall furnish on the application the name and license number of the individual the licensee employs or with which the applicant contracts. Within thirty days of a change, the licensee shall provide the board with notice of any change in the licensee.
    2. A durable medical equipment retailer may sell or deliver to a patient’s home durable medical-related equipment in accordance with a practitioner’s prescription or drug order. The retail durable medical equipment retailer shall keep the original prescription or order or an electronic copy at the licensed location or must have available for inspection an electronic copy of the original order or electronic copy of the order. A prescription or order is not valid after one year, except a prescription or order for repair, maintenance, or replacement of equipment and items designated as thirteen month capped rental items by the center of Medicare and Medicaid services may be perpetual. A retail durable medical equipment retailer shall maintain a prescription or order for five years. A durable medical equipment retailer may only obtain medical equipment from a manufacturer or wholesaler that is duly licensed by the state.
  2. An out-of-state retail durable medical equipment retailer or a principal or agent of the retailer may not conduct business in this state unless the retailer is licensed by the board as a retail durable medical equipment retailer, paid the fee required by the board, and is registered with the secretary of state. An applicant shall submit an application for a license on a form furnished by the board and the applicant must be accompanied by a copy of the certificate of authority from the secretary of state. The issuance of a license under this section does not change or affect tax liability imposed by this state on an out-of-state retail durable medical equipment retailer.
  3. The board may adopt rules that permit an out-of-state retail durable medical equipment retailer to obtain a license on the basis of reciprocity if the retailer possesses a valid license granted by another jurisdiction and the legal standards for licensure in the other jurisdiction are comparable to the standards under this chapter and if the other jurisdiction extends reciprocity to retail durable medical equipment retailers licensed in this state. However, if the requirements for licensure under this chapter are more restrictive than the standards of the other jurisdiction, the out-of-state retail durable medical equipment retailer shall comply with the additional requirements of this chapter to obtain a license under this chapter.

Source:

S.L. 2013, ch. 322, § 9; 2015, ch. 296, § 2, effective July 1, 2015.

43-15.3-12. Fees.

The board shall charge and collect the following fees under this chapter:

Chain drug warehouse $200 Chain pharmacy warehouse $200 Durable medical equipment distributor, medical gas distributor, or both $200 Durable medical equipment retailer, medical gas retailer and distributor, or both $300 Hospital offsite warehouse $200 Jobber or broker Not to exceed $1,000 Manufacturer Not to exceed $1,000 Medical gas retailer, durable medical equipment retailer, or both $200 Medical gas durable medical equipment distributor and retailer $300 Outsourcing facility $200 Own label distributor Not to exceed $1,000 Pharmacy distributor $200 Private label distributor Not to exceed $1,000 Repackager Not to exceed $1,000 Reverse distributor $200 Third-party logistic provider Not to exceed $1,000 Veterinary-only distributor $200 Virtual manufacturer $400 Virtual wholesaler or distributor Not to exceed $1,000 Wholesaler or distributor Not to exceed $1,000

Click to view

Source:

S.L. 2013, ch. 322, § 10; 2017, ch. 296, § 3, effective July 1, 2015; 2021, ch. 242, § 2, effective August 1, 2021.

43-15.3-13. Compounding provided by an outsourcing facility.

  1. A facility may provide, without a patient specific prescription, a nonpatient specific compounded drug preparation for human use only, if the following conditions apply:
    1. The entity is registered with the United States food and drug administration as an outsourcing facility pursuant to section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)]; and
    2. The entity is licensed under this chapter with an outsourcing facility classification, has designated a licensed pharmacist in the state of residence as the responsible person on the license, and the facility meets the standards for licensure set in this chapter.
  2. Within forty-eight hours of a request from the board, the facility shall make available to the board any inspection reports, federal food and drug administration reports of objectionable conditions issued against the facility, and lists of distribution of products to the state.
  3. The facility shall comply with all labeling and recordkeeping requirements pursuant to section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)].
  4. Notwithstanding contrary provisions of this chapter, an outsourcing facility may compound and sell in the state a compounded calcium gluconate product intended for the emergency treatment of hydrofluoric acid exposure without obtaining a license under this chapter.

Source:

S.L. 2015, ch. 296, § 4, effective July 1, 2015; 2019, ch. 353, § 1, effective March 20, 2019.

43-15.3-14. Third-party logistics providers.

  1. Each third-party logistics provider shall comply with the standards for licensure; requirements to distribute prescription drugs, medical gases, or medical equipment; restrictions on transactions; and pedigree requirements set forward in this chapter.
  2. The board shall issue a separate license to each qualified third-party logistics provider applying for licensure.

History. S.L. 2015, ch. 296, § 5, effective July 1, 2015.

CHAPTER 43-15.4 Veterinary Prescription Drugs

43-15.4-01. Definitions.

As used in this chapter:

  1. “Board” means the state board of pharmacy.
  2. “Compound” means the preparation, mixing, assembling, packaging, or labeling of a drug or device.
  3. “Controlled substance” means a drug, substance, or immediate precursor in schedules I through V as set out in chapter 19-03.
  4. “Dispensing” means the delivery of a veterinary prescription drug pursuant to the lawful order of a licensed veterinarian and the associated recordkeeping that is relevant to that practice.
  5. “Extra-label use” means the use of an approved drug in a manner that is not in accordance with the approved label directions.
  6. “Nontraditional livestock” means any wildlife held in a cage, fence, enclosure, or other manmade means of confinement that limits its movement within definite boundaries or an animal that is physically altered to limit movement and facilitate capture.
  7. “Veterinary prescription drugs” means drugs that are to be used or prescribed only within the context of a valid veterinarian-client-patient relationship. Veterinary prescription drugs are those drugs restricted by federal law to use by or on the order of a licensed veterinarian.
  8. “Veterinarian-client-patient relationship” means:
    1. A veterinarian has assumed the responsibility for making medical judgments regarding the health of an animal and the need for medical treatment, and the client, who is the owner or other caretaker, has agreed to follow the instructions of the veterinarian.
    2. There is sufficient knowledge of the animal by the veterinarian to initiate at least a general or preliminary diagnosis of the medical condition of the animal.
    3. The practicing veterinarian is readily available for followup in the case of adverse reactions or failure of the regimen of therapy. This relationship exists only when the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal by virtue of an examination of the animal and by medically appropriate and timely visits to the premises where the animal is kept.
  9. “Veterinary dispensing technician” means a nonpharmacist registered by the board to dispense veterinary prescription drugs in a veterinary retail facility.
  10. “Veterinary retail facility” means an establishment registered by the board employing a registered veterinary dispensing technician authorized to dispense veterinary prescription drugs pursuant to bona fide orders of veterinarians.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-02. Exemptions.

The provisions of this chapter do not apply to the following:

  1. A pharmacist or a pharmacy participating in the practice of pharmacy.
  2. A licensed veterinarian or a veterinarian’s practice.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-03. Veterinary retail facility — Permit required.

A person, copartnership, association, corporation, or limited liability company may not open, establish, operate, maintain, or do business in the state of North Dakota, a veterinary retail facility without first obtaining a permit to do so from the board. Application for a permit must be made upon a form prescribed and furnished by the board and must be accompanied by a fee set by the board not to exceed three hundred dollars. A like fee must be paid upon each annual renewal thereof. Separate applications must be made and separate permits required for each veterinary retail facility opened, established, operated, or maintained by the same owner and for the change of location, name, or ownership of an existing veterinary retail facility.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-04. Minimum standards for veterinary retail facilities.

The following standards apply to veterinary retail facilities:

  1. Veterinary prescription drugs dispensed by a veterinary retail facility pursuant to a licensed veterinarian’s prescription are for use on equidae, food-animals, and nontraditional livestock only.
  2. Veterinary dispensing technicians may not:
    1. Dispense controlled substances.
    2. Compound veterinary prescription drugs for the dispensing of a prescription.
    3. Repackage veterinary prescription drugs for the dispensing of a prescription, except that a veterinary dispensing technician may break down case lots of veterinary prescription drugs, provided the seals on the individual containers are not broken. Veterinary dispensing technicians may not open a container and count out or measure out any quantity of a veterinary prescription drug.
    4. Dispense medication for extra-label use.
  3. Veterinary prescription drugs returned to a veterinary retail facility from a client must be treated as damaged or outdated drugs. Returned drugs may not be returned to stock or dispensed, distributed, or resold.
  4. A veterinary dispensing technician may dispense veterinary prescription drugs for use on equidae, food-animals, and nontraditional livestock on the basis of a written, electronically transmitted, or oral order received from a licensed veterinarian or the authorized agent of a licensed veterinarian. Only a veterinary dispensing technician may receive an orally transmitted new or refill prescription.
  5. A veterinary dispensing technician may refill a prescription only if the initial prescription is issued indicating that a specific number of refills are authorized. A prescription may not be refilled twelve or more months after the issuance date of the initial order.
  6. A veterinary dispensing technician must file, or cause to be filed, any prescription, or a copy thereof, which has been dispensed in the veterinary retail facility. The prescription or a copy of the prescription must be preserved for at least three years after it has been filled. The veterinary dispensing technician must furnish a copy of any prescription to the party presenting it on the request of such party only.
  7. Records of receipt and dispensing of legend drugs must be kept for three years and may be audited by the state board of pharmacy.
  8. All veterinary prescription drugs must be properly labeled when dispensed. A complete label must include the following information:
    1. Name, address, and telephone number of veterinarian.
    2. Name of client.
    3. Identification of animals or herds treated.
    4. Date of treatment, prescribing, or dispensing of drug.
    5. Name and quantity of the drug to be prescribed or dispensed.
    6. Dosage and duration directions for use.
    7. Cautionary statements, as needed.
    8. Expiration date.
  9. Veterinary prescription drugs must be stored separately from over-the-counter drugs. Drugs must be stored under conditions recommended by the manufacturer.

If that information is included in a manufacturer’s label, it is unnecessary to repeat it on the prescription label. If there is inadequate space on the label for complete instructions, the veterinary dispensing technician shall provide additional information to accompany the drug dispensed or prescribed.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-05. Veterinary dispensing technicians — Educational requirements.

To be eligible to be registered by the board as a veterinary dispensing technician, an individual must meet one of the following requirements:

  1. Successful completion of an academic program approved by the state board of pharmacy;
  2. Successful completion of a certification program approved by the state board of pharmacy; or
  3. Be licensed as a veterinary technician by the state board of veterinary medical examiners.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-06. Veterinary dispensing technicians — Registration requirements.

  1. A veterinary dispensing technician must register with the state board of pharmacy on an annual basis.
  2. A veterinary dispensing technician must be assigned a registration number.
  3. The state board of pharmacy shall provide the veterinary dispensing technician with an annual registration card and pocket identification card.
  4. The veterinary dispensing technician certificate and annual registration card must be displayed and visible to the public in the veterinary retail facility where the veterinary dispensing technician is employed.
  5. The veterinary dispensing technician must wear a name badge while in the veterinary retail facility which clearly identifies the person as a “veterinary dispensing technician”.
  6. Every registered veterinary dispensing technician, within fifteen days after changing address or place of employment, shall notify the board of the change. The board shall make the necessary changes in the board’s records.
  7. A veterinary dispensing technician holding a certificate of registration as a veterinary dispensing technician in this state may go on inactive status and continue to hold a certificate of registration in this state provided the technician on inactive status may not practice within this state. A veterinary dispensing technician on inactive status may not be required to meet the continuing education requirements of the board under section 43-15.4-08. In order for a veterinary dispensing technician to change an inactive status of registration to an active status of registration, the veterinary dispensing technician must complete eight hours of approved continuing education and thereafter comply with the continuing education requirements of the board.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-07. Veterinary dispensing technician continuing education.

  1. Each registered veterinary dispensing technician shall complete at least eight hours of approved continuing education every year as a condition of renewal of a registration as a veterinary dispensing technician in this state. Of the required eight hours of continuing education, at least four hours must be of pharmacy technician continuing education approved by the state board of pharmacy and at least four hours must be of veterinary technician continuing education approved by the state board of veterinary medical examiners.
  2. There may be no carryover or extension of continuing education units with the exception that continuing education units obtained twelve months prior to the beginning of each annual reporting period may be used in the current annual reporting period which begins March first of each year and ends the last day of February, or the previous reporting period. However, the units may not be counted as credit in both reporting periods. Failure to obtain the required eight hours of continuing education by the renewal date may result in suspension for a minimum of thirty days or a maximum of the period ending the date the continuing education is completed.
  3. Veterinary dispensing technicians shall maintain their own records on forms supplied by the board. The records must be maintained for a two-year period.
  4. The requirements of this section do not apply to a veterinary dispensing technician applying for a first renewal of a registration.
  5. A veterinary dispensing technician registered with the board may make application to the board for a waiver of compliance with the continuing education requirements and may be granted an exemption by the board.
  6. Upon request of the board, proof of compliance must be furnished to the board.

Source:

S.L. 2011, ch. 311, § 3.

43-15.4-08. Penalties for violation of rule regulating veterinary dispensing technicians.

  1. The registration of a veterinary dispensing technician violating drug laws or rules may be revoked by the state board of pharmacy, and the veterinary dispensing technician may be subject to the penalties of section 43-15-42.1.
  2. The license of a veterinary retail facility violating drug laws or rules may be revoked by the state board of pharmacy and the veterinary retail facility may be subject to the penalties of section 43-15-42.1.

Source:

S.L. 2011, ch. 311, § 3.

CHAPTER 43-16 Photographers [Repealed]

[Repealed by omission from this code]

Note.

This chapter was declared unconstitutional in State v. Cromwell, 72 ND 565, 9 N.W.2d 914 (1943).

CHAPTER 43-17 Physicians and Surgeons

43-17-01. Definitions.

  1. “Board” means the North Dakota board of medicine.
  2. “Licensee” means a physician or physician assistant licensed to practice in North Dakota.
  3. “Physician” includes physician and surgeon (M.D.) and osteopathic physician and surgeon (D.O.).
  4. “Physician assistant” means an individual issued a physician assistant license under this chapter.
  5. “Practice of medicine” includes the practice of medicine, surgery, and obstetrics. The following persons are regarded as practicing medicine:
    1. A person that holds out to the public as being engaged within this state in the diagnosis or treatment of diseases or injuries of human beings.
    2. A person that suggests, recommends, or prescribes any form of treatment for the intended relief or cure of any physical or mental ailment of any individual, with the intention of receiving, directly or indirectly, any fee, gift, or compensation.
    3. A person that maintains an office for the examination or treatment of individuals afflicted with disease or injury of the body or mind.
    4. A person that attaches the title M.D., surgeon, doctor, D.O., osteopathic physician and surgeon, or any other similar word or words or abbreviation to the person’s name, indicating that the person is engaged in the treatment or diagnosis of the diseases or injuries of human beings shall be held to be engaged in the practice of medicine.
  6. “Telemedicine” means the practice of medicine using electronic communication, information technologies, or other means between a licensee in one location and a patient in another location, with or without an intervening health care provider. “Telemedicine” includes direct interactive patient encounters, asynchronous store-and-forward technologies, and remote monitoring.

Source:

S.L. 1911, ch. 189, §§ 5, 6; C.L. 1913, §§ 462, 463; R.C. 1943, § 43-1701; S.L. 1957, ch. 302, § 1; 1957 Supp., § 43-1701; S.L. 1969, ch. 395, § 1; 1999, ch. 380, § 1; 2015, ch. 297, § 17, effective August 1, 2015; 2019, ch. 354, § 1, effective August 1, 2019; 2019, ch. 355, § 1, effective August 1, 2019.

Note.

Section 43-17-01 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Sect ion 1 of Chapter 354, Session Laws 2019, Senate Bill 2094; and Section 1 of Chapter 355, Session Laws 2019, House Bill 1175.

Cross-References.

Physician may sell drugs, see N.D.C.C. § 43-15-14, and N.D.C.C. ch. 19-03.1.

Notes to Decisions

Object of Law.

A statute making it an offense to practice medicine without a license is aimed at one holding himself out to be a “physician”, “doctor”, or “surgeon”. State v. Miller, 59 N.D. 286, 229 N.W. 569, 1930 N.D. LEXIS 141 (N.D. 1930).

Practicing Medicine.

The term “practicing medicine” is not concerned with the efficacy of the remedy. When one diagnoses disease and prescribes and applies any therapeutic agent as a remedy, he is, in a broad sense, practicing medicine. State v. Miller, 59 N.D. 286, 229 N.W. 569, 1930 N.D. LEXIS 141 (N.D. 1930).

Lessor did not breach a lease by refusing to renew it for a 5-year term because a lessee failed to maintain his medical license, which was a “necessary license” under the unambiguous terms of the lease; under N.D.C.C. § 9-07-03, the parties intended for the lessee to provide medical care from an office leased from inside of a nursing home, which was partially indicated by the fact that the suffix “M.D.” was placed after the lessee’s name in the lease document. Hsu v. Marian Manor Apts., Inc., 2007 ND 205, 743 N.W.2d 672, 2007 N.D. LEXIS 207 (N.D. 2007).

Collateral References.

Medical malpractice: who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

43-17-02. Persons exempt from the provisions of chapter.

The provisions of this chapter do not apply to the following:

  1. Students of medicine or osteopathy who are continuing their training and performing the duties of a resident in any hospital or institution maintained and operated by the state, an agency of the federal government, or in any residency program accredited by the accreditation council on graduate medical education, provided that the North Dakota board of medicine may adopt rules relating to the licensure, fees, qualifications, activities, scope of practice, and discipline of such persons.
  2. The domestic administration of family remedies.
  3. Dentists practicing their profession when properly licensed.
  4. Optometrists practicing their profession when properly licensed.
  5. The practice of christian science or other religious tenets or religious rules or ceremonies as a form of religious worship, devotion, or healing, if the person administering, making use of, assisting in, or prescribing, such religious worship, devotion, or healing does not prescribe or administer drugs or medicines and does not perform surgical or physical operations, and if the person does not hold out to be a physician or surgeon.
  6. Commissioned medical officers of the armed forces of the United States, the United States public health service, and medical officers of the veterans administration of the United States, in the discharge of their official duties, and licensed physicians from other states or territories if called in consultation with a person licensed to practice medicine in this state.
  7. Doctors of chiropractic duly licensed to practice in this state pursuant to the statutes regulating such profession.
  8. Podiatrists practicing their profession when properly licensed.
  9. An individual rendering services as a physician assistant. However, sections 43-17-02.1 and 43-17-02.2 apply to physician assistants. The board shall adopt rules governing the conduct, licensure, fees, qualifications, and discipline of physician assistants. Physician assistants are not authorized to perform any services that must be performed by persons licensed pursuant to chapters 43-12.1, 43-13, 43-15, and 43-28 or services otherwise regulated by licensing laws, notwithstanding medical doctors need not be licensed specifically to perform the services contemplated under such chapters or licensing laws.
  10. A nurse practicing the nurse’s profession when properly licensed by the North Dakota board of nursing.
  11. A naturopath duly licensed to practice in this state pursuant to the statutes regulating such profession.
  12. An individual duly licensed to practice medical imaging or radiation therapy in this state under chapter 43-62.
  13. An acupuncturist duly licensed to practice in this state pursuant to the statutes regulating such profession.

Source:

S.L. 1890, ch. 93, § 5; R.C. 1895, § 279; R.C. 1899, § 279; R.C. 1905, § 298; S.L. 1911, ch. 189, § 6; C.L. 1913, § 463; R.C. 1943, § 43-1702; S.L. 1957, ch. 302, § 2; 1957 Supp., § 43-1702; S.L. 1969, ch. 395, § 2; 1975, ch. 404, § 1; 1975, ch. 405, § 1; 1987, ch. 525, § 1; 1995, ch. 403, § 16; 1997, ch. 372, § 1; 1999, ch. 50, § 63; 1999, ch. 380, § 2; 2011, ch. 331, § 1; 2015, ch. 297, § 18, effective August 1, 2015; 2015, ch. 308, § 1, effective August 1, 2015; 2015, ch. 309, § 2, effective August 1, 2015; 2019, ch. 354, § 2, effective August 1, 2019; 2019, ch. 355, § 2, effective August 1, 2019.

Note.

Section 11 of chapter 354, S.L. 2019 provides, “ APPLICATION. To facilitate application of sections 2 and 6 through 10 of this Act, the North Dakota board of medicine shall provide the North Dakota medical imaging and radiation therapy board with the files regarding all active fluoroscopy technologists licensed by the North Dakota board of medicine necessary for the North Dakota medical imaging and radiation therapy board to take over licensure and regulation of these technologists.”

Section 43-17-02 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 354, Session Laws 2019, Senate Bill 2094; and Section 2 of Chapter 355, Session Laws 2019, House Bill 1175.

Notes to Decisions

Constitutionality.

Statute did not interfere with religious liberty in making it unlawful without a license to administer drugs or medicine or for the practitioner to hold himself out as a physician, even though defendant practitioner claimed and was prepared to prove he was practicing the tenets of his religion. State v. Miller, 59 N.D. 286, 229 N.W. 569, 1930 N.D. LEXIS 141 (N.D. 1930).

Object of Statute.

A statute making it an offense to practice medicine without a license is aimed at one holding himself out to be a “physician”, “doctor” or “surgeon”. State v. Miller, 59 N.D. 286, 229 N.W. 569, 1930 N.D. LEXIS 141 (N.D. 1930).

Religion As Defense.

Issue in prosecution for practicing medicine without a license was whether defendant prescribed or administered medicines or assumed title of physician and was consulted and practiced as such; issue was not nature or effect of substances given as medicine or name assigned by defendant to his practices; assertions that defendant was practicing naturopathy, that naturopathy was a tenet of his church and that defendant was acting as an ordained minister were irrelevant. State v. Miller, 59 N.D. 286, 229 N.W. 569, 1930 N.D. LEXIS 141 (N.D. 1930).

43-17-02.1. Physician assistant — Scope of practice.

  1. A physician assistant may:
    1. Provide a legal medical service for which a physician assistant is prepared by education, training, and experience and is competent to perform, including:
      1. Obtaining and performing a comprehensive health history and physical examination;
      2. Evaluating, diagnosing, managing, and providing medical treatment;
      3. Ordering and evaluating a diagnostic study and therapeutic procedure;
      4. Performing a diagnostic study or therapeutic procedure not involving the use of medical imaging as defined in section 43-62-01 or radiation therapy as defined in section 43-62-01;
      5. Performing limited sonography on a focused imaging target to assess specific and limited information about a patient’s medical condition or to provide real-time visual guidance for another procedure;
      6. Educating a patient on health promotion and disease prevention;
      7. Providing consultation upon request; and
      8. Writing a medical order;
    2. Obtain informed consent;
    3. Supervise, delegate, and assign therapeutic and diagnostic measures not involving the use of medical imaging as defined in section 43-62-01 or radiation therapy as defined in section 43-62-01 to licensed or unlicensed personnel;
    4. Certify the health or disability of a patient as required by any local, state, or federal program;
    5. Authenticate any document with the signature, certification, stamp, verification, affidavit, or endorsement of the physician assistant if the document may be authenticated by the signature, certification, stamp, verification, affidavit, or endorsement of a physician; and
    6. Pronounce death.
  2. A physician assistant shall collaborate with, consult with, or refer to the appropriate member of the health care team as indicated by the condition of the patient, the education, experience, and competence of the physician assistant, and the standard of care. The degree of collaboration must be determined at the practice which may include decisions made by the employer, group, hospital service, and the credentialing and privileging systems of a licensed facility. A physician assistant is responsible for the care provided by that physician assistant and a written agreement relating to the items in this chapter is not required.
  3. A physician assistant:
    1. May prescribe, dispense, administer, and procure drugs and medical devices;
    2. May plan and initiate a therapeutic regimen that includes ordering and prescribing nonpharmacological interventions, including durable medical equipment, nutrition, blood and blood products, and diagnostic support services, including home health care, hospice, and physical and occupational therapy;
    3. May prescribe and dispense schedule II through V substances as designated by the federal drug enforcement agency and all legend drugs;
    4. May not dispense a drug, unless pharmacy services are not reasonably available, dispensing is in the best interest of the patient, or an emergency exists;
    5. May request, receive, and sign for a professional sample, and may distribute a professional sample to a patient; and
    6. If prescribing or dispensing a controlled substance, shall register with the federal drug enforcement administration and shall comply with appropriate state and federal laws.
  4. A physician assistant shall practice at a licensed health care facility, facility with a credentialing and privileging system, physician-owned facility or practice, or facility or practice approved by the board.
  5. Notwithstanding subsections 2 and 4, a physician assistant with less than four thousand hours of practice approved by the board under subsection 4 shall execute a written collaborative agreement that:
    1. Is between a physician and a physician assistant with less than four thousand hours practice;
    2. Describes how collaboration required under subsection 2 must occur; and
    3. Is available to the board on request.
  6. A physician assistant shall comply with any privileging and credentialing systems at the facility at which the physician assistant practices.

Source:

S.L. 1991, ch. 459, § 1; 2001, ch. 377, § 1; 2009, ch. 367, § 1; 2019, ch. 355, § 3, effective August 1, 2019.

43-17-02.2. Physician assistant — Use of certain words or initials prohibited.

  1. A person that is not a physician assistant may not:
    1. Represent oneself as a physician assistant or act as a physician assistant; or
    2. Use any combination or abbreviation of the term or title “physician assistant” or “PA” to indicate or imply the person is a physician assistant.
  2. However, an individual who is not licensed as a physician assistant under this chapter but who meets the qualifications for licensure as a physician assistant under this chapter may use the title “physician assistant” or “PA” but may not act or practice as a physician assistant unless licensed under this chapter.

Source:

S.L. 1993, ch. 425, § 1; 2015, ch. 297, § 19, effective August 1, 2015; 2019, ch. 355, § 4, effective August 1, 2019.

43-17-02.3. Practice of medicine or osteopathy by holder of permanent, unrestricted license — Exceptions.

The practice of medicine is deemed to occur in the state the patient is located. A practitioner providing medical care to a patient located in this state is subject to the licensing and disciplinary laws of this state and shall possess an active North Dakota license for the practitioner’s profession. Notwithstanding anything in this chapter to the contrary, any physician who is the holder of a permanent, unrestricted license to practice medicine or osteopathy in any state or territory of the United States, the District of Columbia, or a province of Canada may practice medicine or osteopathy in this state without first obtaining a license from the North Dakota board of medicine under one or more of the following circumstances:

  1. As a member of an organ harvest team;
  2. On board an air ambulance and as a part of its treatment team;
  3. To provide one-time consultation on a diagnosis for a patient to a physician licensed in the state, or teaching assistance for a period of not more than seven days; or
  4. To provide consultation or teaching assistance previously approved by the board for charitable organizations.

Source:

S.L. 1999, ch. 380, § 6; 2015, ch. 297, § 20, effective August 1, 2015; 2019, ch. 354, § 3, effective August 1, 2019.

43-17-02.4. Licensure exemption for certain physicians.

  1. A physician licensed in good standing to practice in another state is exempt from the licensure requirements of this chapter if the physician:
    1. Has a written or oral agreement with a sports team to provide care to team members and coaching staff traveling with the team for a specific sporting event in this state; or
    2. Has been invited by a national sport governing body to provide services to team members and coaching staff at a national sport training center in this state or to provide services at an event or competition in this state which is sanctioned by the national sport governing body if:
      1. The physician’s practice in this state is limited to the practice required by the national sport governing body; and
      2. The services provided by the physician are within the physician’s scope of practice.
  2. A physician exempt under this section may not:
    1. Provide care or consultation to an individual residing in this state, other than an individual specified in subsection 1; or
    2. Practice at a licensed health care facility in this state.
  3. An exemption under subdivision a of subsection 1 is valid while the physician is traveling with the sports team. This exemption may not exceed ten days for each sporting event. A physician may apply to the board to receive an exemption of twenty additional days per sporting event.
  4. The board may enter an agreement with a medical and osteopathic licensing board of another state to implement this section. An agreement may include a procedure for reporting a potential medical license violation.
  5. The board may adopt rules to implement this section.

Source:

S.L. 2019, ch. 356, § 1, effective August 1, 2019.

43-17-03. North Dakota board of medicine — How appointed — Qualifications.

  1. The governor shall appoint a North Dakota board of medicine consisting of thirteen members, nine of whom are doctors of medicine, one of whom is a doctor of osteopathy, one of whom is a physician assistant, and two of whom are designated as public members. If no osteopathic physician is qualified and willing to serve, any qualified physician may be appointed in place of the osteopathic physician.
  2. Each physician member must:
    1. Be a practicing physician of integrity and ability.
    2. Be a resident of and duly licensed to practice medicine in this state.
    3. Be a graduate of a medical or osteopathic school of high educational requirements and standing.
    4. Have been engaged in the active practice of the physician’s profession within this state for a period of at least five years.
  3. Each public member of the board must:
    1. Be a resident of this state.
    2. Be at least twenty-one years of age.
    3. Not be affiliated with any group or profession that provides or regulates health care in any form.
  4. The physician assistant member of the board must:
    1. Be a practicing physician assistant of integrity and ability.
    2. Be a resident of and be duly licensed to practice as a physician assistant in this state.
    3. Have been engaged in the active practice as a physician assistant within this state for a period of at least five years.
  5. An individual appointed to the board shall qualify by taking the oath required of civil officers.

Source:

S.L. 1890, ch. 93, § 1; R.C. 1895, § 275; R.C. 1899, § 275; R.C. 1905, § 294; S.L. 1911, ch. 189, § 1; C.L. 1913, § 458; R.C. 1943, § 43-1703; S.L. 1969, ch. 395, § 3; 1987, ch. 525, § 2; 1993, ch. 426, § 1; 1999, ch. 381, § 2; 2005, ch. 359, § 1; 2011, ch. 312, § 1; 2015, ch. 297, § 21, effective August 1, 2015.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-17-04. Term of office.

The term of office of each member of the board is four years and until a successor is appointed and qualified. The terms must be so arranged that no more than four terms expire on the thirty-first of July of each year. The governor shall fill all vacancies by appointment but in case of a vacancy before the expiration of a term, the appointment must be for the residue of the term only. No member of the board may serve thereon for more than two successive terms.

Source:

S.L. 1890, ch. 93, § 1; R.C. 1895, § 275; R.C. 1899, § 275; R.C. 1905, § 294; S.L. 1911, ch. 189, §§ 1, 14; C.L. 1913, §§ 458, 471; R.C. 1943, § 43-1704; S.L. 1969, ch. 395, § 4; 1993, ch. 427, § 1.

43-17-05. Removal of members of North Dakota board of medicine — Re-election.

The governor for good cause shown and upon the recommendation of three-fourths of the members of the North Dakota board of medicine may remove any member of such board for misconduct, incapacity, or neglect of duty.

Source:

S.L. 1911, ch. 189, § 14; C.L. 1913, § 471; R.C. 1943, § 43-1705; 2015, ch. 297, § 22, effective August 1, 2015.

43-17-06. Officers of the board.

The board shall elect a president and vice president from its own number and an executive director. The executive director need not be a member of the board. The executive director must be the general administrative and prosecuting officer of such board.

Source:

S.L. 1890, ch. 93, § 2; R.C. 1895, § 276; R.C. 1899, § 276; R.C. 1905, § 295; S.L. 1911, ch. 189, § 2; C.L. 1913, § 459; R.C. 1943, § 43-1706; S.L. 1957, ch. 302, § 3; 1957 Supp., § 43-1706; S.L. 1999, ch. 380, § 3; 2021, ch. 56, § 6, effective August 1, 2021.

43-17-07. Meetings of the board.

The board shall hold at least three meetings in each calendar year for the examination of applicants for licensure, and may call such special meetings as may be necessary. The meetings must be held at such places as the board may designate.

Source:

S.L. 1890, ch. 93, § 2; R.C. 1895, § 276; R.C. 1899, § 276; R.C. 1905, § 295; S.L. 1911, ch. 189, § 2; C.L. 1913, § 459; R.C. 1943, § 43-1707; S.L. 1957, ch. 302, § 4; 1957 Supp., § 43-1707; S.L. 1971, ch. 437, § 1; 1987, ch. 525, § 3.

43-17-07.1. Powers of the board of medicine.

In addition to any other powers, the board may:

  1. Employ or contract with one or more organizations or agencies known to provide acceptable examinations for the preparation and scoring of required examinations relating to physician licensure, and employ or contract with one or more organizations or agencies known to provide acceptable examination services for the administration of the required examination.
  2. Prescribe the time, place, method, manner, scope, and subject of examination.
  3. Impose sanctions, deny licensure, levy fines, or seek appropriate civil or criminal penalties against anyone who violates or attempts to violate examination security, anyone who obtains or attempts to obtain licensure by fraud or deception, and anyone who knowingly assists in that type of activity.
  4. Require information on an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, including the federation of state medical boards action data bank, other data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies be reported to the board. The board or its investigative panels may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with the criminal history record check are the responsibility of the licensee or applicant.
  5. Require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  6. Establish a mechanism for dealing with a licensee who abuses or is dependent upon or addicted to alcohol or other addictive chemical substances, to enter an agreement, at its discretion, with a professional organization whose relevant procedures and techniques it has evaluated and approved for the organization’s cooperation or participation.
  7. Issue a cease and desist order, obtain a court order, or an injunction to halt unlicensed practice, a violation of this chapter, or a violation of the rules of the board.
  8. Issue a conditional, restricted, or otherwise circumscribed license as it determines necessary.

Source:

S.L. 1993, ch. 426, § 2; 2003, ch. 48, § 32; 2003, ch. 358, § 1; 2005, ch. 111, § 8; 2015, ch. 297, § 23, effective August 1, 2015.

Collateral References.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

43-17-07.2. Conflict of interest.

A member of the board, acting in that capacity or as a member of any committee of the board, may not participate in the making of any decision or the taking of any action affecting that member’s personal, professional, or pecuniary interest, or that of a known relative or business or professional associate.

Source:

S.L. 1993, ch. 426, § 3.

Notes to Decisions

Due Process.

Doctor’s right to due process was not violated during medical board disciplinary proceedings where one of the investigators for the North Dakota State Board of Medical Examiners had an alleged personal and financial conflict of interest in the case, because the statutory scheme for the Board and its investigative panels precluded Board members, like the investigator who served on an investigative panel, from participating in adjudicatory proceedings before the Board on that complaint. The statutory scheme for the Board’s investigative panels, coupled with the other statutory procedures for adjudication by the Board, provided adequate procedural safeguards to satisfy the requirements for due process, and the investigator’s participation in the investigation of the complaints did not violate due process and, therefore, the district court did not err in deciding the Board did not violate the doctor’s due process or equal protection rights. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Law Reviews.

North Dakota Supreme Court Review (North Dakota State Bd. of Med. Examiners- Investigative Panel B v. Hsu), 83 N.D. L. Rev. 1085 (2007).

43-17-08. Power of board to administer oaths — Summon witnesses — Take testimony. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-09. Subpoena — How to issue — Fees — Service. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-10. Failure to appear or testify — Penalty. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-11. Records of board — License applications — Preservation.

The board shall keep a record of all of its proceedings and applications for license. Application records must be preserved for at least six years beyond the disposition thereof or the last annual registration of the licensee, whichever is longer.

Source:

S.L. 1890, ch. 93, § 2; R.C. 1895, § 276; R.C. 1899, § 276; R.C. 1905, § 295; S.L. 1911, ch. 189, § 2; C.L. 1913, § 459; R.C. 1943, § 43-1711; S.L. 1987, ch. 525, § 4.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-17-12. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1931, ch. 213, § 8; R.C. 1943, § 43-1712; S.L. 1957, ch. 302, § 5; 1957 Supp., § 43-1712; S.L. 1963, ch. 346, § 43; 1973, ch. 403, § 33; 1975, ch. 466, § 35; 1995, ch. 350, § 34.

43-17-13. Board to adopt rules and regulations. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-14. Compensation — Expenses of board and the members thereof.

A member of the board shall receive for each day during which the member actually is engaged in the performance of the duties of the member’s office such per diem as must be fixed by the board and such mileage as is provided in section 54-06-09. The executive director of the board shall receive such salary or other compensation, and such allowance for clerical and other expenses of the board as the board shall determine.

Source:

S.L. 1890, ch. 93, § 3; R.C. 1895, § 277; R.C. 1899, § 277; S.L. 1905, ch. 148, § 1; R.C. 1905, § 296; S.L. 1911, ch. 189, § 10; C.L. 1913, § 467; R.C. 1943, § 43-1714; S.L. 1987, ch. 525, § 5; 2021, ch. 56, § 7, effective August 1, 2021.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-17-15. Fees deposited with state treasurer — Separate fund — Vouchers. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-17-16. License required. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-17. Application for license.

In order to obtain a license to practice medicine in this state, an application must be made to the board through the executive director. The application must be upon the form adopted by the board and must be made in the manner prescribed by it.

Source:

S.L. 1890, ch. 93, § 3; R.C. 1895, § 277; R.C. 1899, § 277; S.L. 1905, ch. 148, § 1; R.C. 1905, § 296; S.L. 1911, ch. 189, § 4; C.L. 1913, § 461; R.C. 1943, § 43-1717; S.L. 1987, ch. 525, § 6; 2021, ch. 56, § 8, effective August 1, 2021.

Collateral References.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

43-17-18. License requirements.

  1. General. Every applicant for licensure shall file a written application, on forms provided by the board, showing to the board’s satisfaction that the applicant is of good moral character and satisfies all of the requirements of this chapter including:
    1. Successful completion of a medical licensure examination satisfactory to the board;
    2. Physical, mental, and professional capability for the practice of medicine in a manner acceptable to the board; and
    3. A history free of any finding by the board, any other state medical licensure board, or any court of competent jurisdiction, of the commission of any act that would constitute grounds for disciplinary action under this chapter; the board may modify this restriction for cause.
  2. Graduates of United States and Canadian schools.
    1. An applicant who is a graduate of an approved medical or osteopathic school located in the United States, its possessions, territories, or Canada, shall present evidence, satisfactory to the board, that the applicant has been awarded a degree of doctor of medicine or doctor of osteopathy from a medical school located in the United States, its possessions, territories, or Canada, approved by the board or by an accrediting body approved by the board at the time the degree was conferred.
    2. An applicant who is a graduate of an approved medical or osteopathic school located in the United States, its possessions, territories, or Canada, must present evidence, satisfactory to the board, that the applicant has successfully completed one year of postgraduate training in the United States or Canada in a program approved by the board or by an accrediting body approved by the board.
  3. Graduates of international schools.
    1. An applicant who is a graduate of a medical school not located in the United States, its possessions, territories, or Canada, shall present evidence, satisfactory to the board, that the applicant possesses the degree of doctor of medicine or a board-approved equivalent based on satisfactory completion of educational programs acceptable to the board. Graduates of osteopathic schools located outside the United States are not eligible for licensure.
    2. An applicant who has graduated from a medical school not located in the United States, its possessions, territories, or Canada, must present evidence, satisfactory to the board, that the applicant has successfully completed thirty months of postgraduate training in a program located in the United States, its possessions, territories, or Canada, and accredited by a national accrediting organization approved by the board or other graduate training approved in advance by the board as meeting standards similar to those of a national accrediting organization. However, if such an applicant has not completed thirty months of postgraduate training in a program approved by the board or by an accrediting body approved by the board, but has met all other licensing requirements and has successfully completed one year of postgraduate training in the United States or Canada in a program approved by the board, and if the board finds that the applicant has other professional experience and training that is substantially equivalent to the last eighteen months of postgraduate training, then the applicant may be deemed eligible for licensure. The board is granted broad discretion in determining whether to apply this exception to the normal licensing requirements. An applicant seeking licensure under this exception must present evidence satisfactory to the board that:
      1. The applicant is certified by a specialty board recognized by the American board of medical specialties or by a specialty board recognized by the royal college of physicians and surgeons of Canada; or
      2. The applicant has passed the special purpose examination developed by the federation of state medical boards of the United States.
    3. The applicant shall present evidence satisfactory to the board that the applicant has been awarded a certificate by the educational council for foreign medical graduates. The board may adopt rules establishing specific exceptions to this requirement.
    4. The applicant has a working ability in the English language sufficient to communicate with patients and physicians and to engage in the practice of medicine.
  4. Special license. The board may grant a temporary special license to an applicant who is a graduate of a medical school that is not located in the United States or Canada if that applicant has met all requirements for licensure except those pertaining to postgraduate training; has successfully completed two years of approved postgraduate training in the United States or Canada; and is enrolled in an approved postgraduate training program in this state. This special license is valid only while the licensee continues to be enrolled in an approved postgraduate training program in this state.

Source:

S.L. 1890, ch. 93, § 3; R.C. 1895, § 277; R.C. 1899, § 277; S.L. 1905, ch. 148, § 1; R.C. 1905, § 296; S.L. 1911, ch. 189, § 9; C.L. 1913, § 466; S.L. 1921, ch. 88, § 1; 1925 Supp., § 466; R.C. 1943, § 43-1718; S.L. 1957, ch. 302, § 7; 1957 Supp., § 43-1718; S.L. 1969, ch. 395, § 5; 1971, ch. 437, § 2; 1973, ch. 120, § 48; 1985, ch. 481, § 1; 1987, ch. 525, § 7; 1987, ch. 526, § 1; 1989, ch. 524, § 1; 1991, ch. 461, § 1; 1993, ch. 428, § 1; 1997, ch. 372, § 2; 2003, ch. 359, § 1; 2011, ch. 313, § 1.

Notes to Decisions

Courses Taken at Foreign Institution.

Under subsection (3), as it read prior to the 1997 amendment, an applicant was required to demonstrate the kinds of courses taken at a foreign institution, when combined with the successful completion of three years of board-approved postgraduate training, were substantially equivalent to the kinds of courses required at a reputable medical or osteopathic college in the United States and the successful completion of one year of Board-approved postgraduate training. Singha v. North Dakota State Bd. of Med. Examiners, 1998 ND 42, 574 N.W.2d 838, 1998 N.D. LEXIS 45 (N.D. 1998).

The Board’s finding that applicant’s educational requirements were not substantially equivalent to the educational qualifications of a physician educated in the U.S. was supported by a preponderance of the evidence where expert testimony was presented regarding the vast differences between a British osteopathic education and that of one in the U.S.; furthermore, the Board did not require the differing educations to be mirror images when it rejected the student’s clinical externships and self-study for not being substantially similar to courses required at a reputable osteopathic college in the U.S. Singha v. North Dakota State Bd. of Med. Exam'rs, 2000 ND 134, 613 N.W.2d 34, 2000 N.D. LEXIS 142 (N.D. 2000).

Collateral References.

Propriety of questioning expert witness regarding specific incidents or allegations of expert’s unprofessional conduct or professional negligence, 11 A.L.R.5th 1.

Tort claim for negligent credentialing of physician, 98 A.L.R.5th 533.

43-17-19. License granted without examination upon qualification of applicant. [Repealed]

Repealed by S.L. 1957, ch. 302, § 16.

43-17-20. Examinations — How conducted — Subjects. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-21. License granted without examination to persons licensed in other states.

The board may in its discretion license by endorsement an applicant who has complied with licensure requirements and who has passed an examination given by a recognized certifying agency approved by the licensing agency, provided such examination was, in the opinion of the board, equivalent in every respect to its examination. The board may also, in its discretion, enter into reciprocal agreements with the licensing agencies of other states or territories or the District of Columbia providing for a reciprocal waiver of further examination or any part thereof. In any case the applicant must appear before the board for such examination into the applicant’s qualifications as may be required by the board. The board may by regulation make provision for temporary and special licenses to be in effect in the interval between board meetings.

Source:

S.L. 1890, ch. 93, § 3; R.C. 1895, § 277; R.C. 1899, § 277; S.L. 1905, ch. 148, § 1; R.C. 1905, § 296; S.L. 1911, ch. 189, § 8; C.L. 1913, § 465; R.C. 1943, § 43-1721; S.L. 1957, ch. 302, § 9; 1957 Supp., § 43-1721.

43-17-22. License — Fees. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-23. Licenses to be recorded. [Repealed]

Repealed by S.L. 1983, ch. 479, § 3.

43-17-24. Physicians register with the board.

On or before the due date established by the board, every person legally licensed to practice medicine within this state shall file with the executive director of the board a registration statement upon blanks prepared and provided by the board and shall pay to the executive director the registration fee. No person may engage in the practice of medicine in this state without a current registration certificate issued by the board.

Source:

S.L. 1931, ch. 213, § 1; R.C. 1943, § 43-1724; S.L. 1987, ch. 525, § 8; 2021, ch. 56, § 9, effective August 1, 2021.

43-17-25. Registration fee.

The registration fee for any person licensed to practice medicine in the state must be fixed by regulation of the board. All fees must be paid to and held by the executive director of the board and are subject to disbursement by the board in performing its duties.

Source:

S.L. 1931, ch. 213, §§ 2, 6, 7; R.C. 1943, § 43-1725; S.L. 1957, ch. 302, § 11; 1957 Supp., § 43-1725; S.L. 1987, ch. 525, § 9; 2021, ch. 56, § 10, effective August 1, 2021.

43-17-26. Annual license issued — License posted. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-26.1. License renewals — Late fees.

A physician seeking to renew the annual registration who has failed to complete the annual registration process within the time specified by the North Dakota board of medicine must be assessed a fee equal to three times the normal annual registration fee, in addition to such other penalties as are authorized by law, if that physician is found to have been practicing medicine in this state after the physician’s license expired. A physician who is not found to have been practicing medicine in this state may renew a license upon payment of the arrearage and meeting the other requirements of the board. However, a physician whose license lapsed more than three years before that physician petitioned the board for reinstatement must submit a new application for licensure, whether or not that physician has practiced medicine in this state since the physician’s license was last current.

Source:

S.L. 1997, ch. 372, § 3; 2015, ch. 297, § 24, effective August 1, 2015.

43-17-27. Board to make rules and regulations as to registration statement — Keep record of persons paying fee. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-27.1. Continuing education requirements.

  1. The board shall promote a high degree of competence in the practice of medicine by establishing rules requiring every physician licensed in the state to fulfill continuing education requirements. Compliance with these rules must be documented at such times and in such manner as is required by the board.
  2. Before a license may be renewed, the licensee shall submit evidence to the board establishing that all continuing education requirements prescribed by the rules adopted by the board have been met.
  3. The board may exempt a physician from the requirements of this section in accordance with rules adopted by the board.

Source:

S.L. 1997, ch. 372, § 4.

43-17-28. When fee remitted to licensee. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-29. Practitioners not registered prohibited from practicing — Revocation of license. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-30. Payment of delinquent registration fee — Reinstatement.

Any practitioner of medicine who has been licensed to practice in this state by the board, and who has been suspended from practice and whose license has been revoked because of failure to pay the registration fee, may, at the discretion of the board, be reinstated, and have the suspension revoked, and the license renewed by paying to the executive director of the board the amount of the registration fee which is then in default.

Source:

S.L. 1931, ch. 213, § 6; R.C. 1943, § 43-1730; S.L. 1957, ch. 302, § 12; 1957 Supp., § 43-1730; S.L. 1985, ch. 483, § 1; 1987, ch. 525, § 10; 2021, ch. 56, § 11, effective August 1, 2021.

43-17-30.1. Disciplinary action.

The board is authorized to take disciplinary action against a licensed physician by any one or more of the following means, as it may find appropriate:

  1. Revocation of license.
  2. Suspension of license.
  3. Probation.
  4. Imposition of stipulations, limitations, or conditions relating to the practice of medicine.
  5. Letter of censure.
  6. Require the licensee to provide free public or charitable service for a defined period.
  7. Impose fines, not to exceed five thousand dollars for any single disciplinary action. Any fines collected by the North Dakota board of medicine must be deposited in the state general fund.

Source:

S.L. 1987, ch. 525, § 11; 1993, ch. 426, § 4; 1999, ch. 380, § 4; 2015, ch. 297, § 25, effective August 1, 2015.

Notes to Decisions

Constitutionality.

Court preliminarily enjoined enforcement of an abortion provision making it punishable through a disciplinary action if a physician failed to determine whether a fetal heartbeat was detectible because the provision violated the Due Process Clause. MKB Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900, 2013 U.S. Dist. LEXIS 102620 (D.N.D. 2013), dismissed without prejudice in part, 2013 U.S. Dist. LEXIS 191752 (D.N.D. Sept. 9, 2013).

Enforcement of Settlement Stipulation.

Board’s enforcement of a settlement stipulation entered into to end an investigation of a doctor’s North Dakota medical practice initiated upon the revocation of his license to practice medicine in Minnesota, in which the doctor agreed not to use any “treatment methodology found by the Minnesota Board of Medical Examiners to be outside of the range of reasonably acceptable medical practice in the State of Minnesota,” by suspending doctor’s license to practice for one year, did not work manifest injustice, and would not be overturned by the Supreme Court. Sletten v. Briggs, 448 N.W.2d 607, 1989 N.D. LEXIS 226 (N.D. 1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1135, 107 L. Ed. 2d 1041, 1990 U.S. LEXIS 805 (U.S. 1990).

Licensed Physician.

Physician who resigned his license to practice medicine two weeks before license revocation proceeding was still a “licensed physician” over which the Board of Medical Examiners had authority. Larsen v. Commission on Med. Competency, 1998 ND 193, 585 N.W.2d 801, 1998 N.D. LEXIS 208 (N.D. 1998).

Revocation of License.

Board of Medical Examiners’ decision to revoke license of physician whose conduct violated N.D.C.C. 43-17-31(1), (6) and (16) was not unreasonable and was not an abuse of discretion, where in its complaint the Commission on Medical Competency had specifically sought revocation and under subsection (1) license revocation was an available disciplinary action for any single violation of N.D.C.C. 43-17-31. Larsen v. Commission on Med. Competency, 1998 ND 193, 585 N.W.2d 801, 1998 N.D. LEXIS 208 (N.D. 1998).

There was evidence supporting the determination of the North Dakota State Board of Medical Examiners that the doctor engaged in a continued pattern of inappropriate care of several patients in violation of N.D.C.C. § 43-17-31(21), and failed to appropriately document medical records for those patients, which reflected a serious departure from the appropriate standard of care; also, there was evidence that supported a determination that the doctor’s prior behavior, his attitude, and the probable logistics for supervision rendered the administrative law judge’s recommendation for monitoring unworkable. Furthermore, the Board was authorized by law to revoke the doctor’s license; thus, the district court erred in reversing the Board’s order revoking the doctor’s license. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Collateral References.

Physician’s or other healer’s conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

Propriety of questioning expert witness regarding specific incidents or allegations of expert’s unprofessional conduct or professional negligence, 11 A.L.R.5th 1.

Pretrial Discovery in Disciplinary Proceedings Against Physician. 65 A.L.R.6th 295.

43-17-31. Grounds for disciplinary action.

  1. Disciplinary action may be imposed against a physician upon any of the following grounds:
    1. The use of any false, fraudulent, or forged statement or document, or the use of any fraudulent, deceitful, dishonest, or immoral practice, in connection with any of the licensing requirements.
    2. The making of false or misleading statements about the physician’s skill or the efficacy of any medicine, treatment, or remedy.
    3. The conviction of any misdemeanor determined by the board to have a direct bearing upon a person’s ability to serve the public as a practitioner of medicine or any felony. A license may not be withheld contrary to the provisions of chapter 12.1-33.
    4. Habitual use of alcohol or drugs.
    5. Physical or mental disability materially affecting the ability to perform the duties of a physician in a competent manner.
    6. The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
    7. Obtaining any fee by fraud, deceit, or misrepresentation.
    8. Aiding or abetting the practice of medicine by an unlicensed, incompetent, or impaired person.
    9. The violation of any provision of a medical practice act or the rules and regulations of the board, or any action, stipulation, condition, or agreement imposed by the board or its investigative panels.
    10. The practice of medicine under a false or assumed name.
    11. The advertising for the practice of medicine in an untrue or deceptive manner.
    12. The representation to a patient that a manifestly incurable condition, sickness, disease, or injury can be cured.
    13. The willful or negligent violation of the confidentiality between physician and patient, except as required by law.
    14. The failure of a doctor of osteopathy to designate that person’s school of practice in the professional use of that person’s name by such terms as “osteopathic physician and surgeon”, “doctor of osteopathy”, “D.O.”, or similar terms.
    15. Gross negligence in the practice of medicine.
    16. Sexual abuse, misconduct, or exploitation related to the licensee’s practice of medicine.
    17. The prescription, sale, administration, distribution, or gift of any drug legally classified as a controlled substance or as an addictive or dangerous drug for other than medically accepted therapeutic purposes.
    18. The payment or receipt, directly or indirectly, of any fee, commission, rebate, or other compensation for medical services not actually or personally rendered, or for patient referrals; this prohibition does not affect the lawful distributions of professional partnerships, corporations, limited liability companies, or associations.
    19. The failure to comply with the reporting requirements of section 43-17.1-05.1.
    20. The failure to transfer medical records to another physician or to supply copies of those records to the patient or to the patient’s representative when requested to do so by the patient or the patient’s designated representative, except if the disclosure is otherwise limited or prohibited by law. A reasonable charge for record copies may be assessed.
    21. A continued pattern of inappropriate care as a physician, including unnecessary surgery.
    22. The use of any false, fraudulent, or deceptive statement in any document connected with the practice of medicine.
    23. The prescribing, selling, administering, distributing, or giving to oneself or to one’s spouse or child any drug legally classified as a controlled substance or recognized as an addictive or dangerous drug.
    24. The violation of any state or federal statute or regulation relating to controlled substances.
    25. The imposition by another state or jurisdiction of disciplinary action against a license or other authorization to practice medicine based upon acts or conduct by the physician that would constitute grounds for disciplinary action as set forth in this section. A certified copy of the record of the action taken by the other state or jurisdiction is conclusive evidence of that action.
    26. The lack of appropriate documentation in medical records for diagnosis, testing, and treatment of patients.
  2. The board shall keep a record of all of its proceedings in the matter of suspending, revoking, or refusing licenses together with the evidence offered.

aa. The failure to properly monitor a fluoroscopy technologist or an emergency medical technician.

bb. The failure to furnish the board or the investigative panel, their investigators, or representatives information legally requested by the board or the investigative panel.

cc. The performance of an abortion on a pregnant woman prior to determining if the unborn child the pregnant woman is carrying has a detectable heartbeat, as provided in subsection 1 of section 14-02.1-05.1.

dd. Noncompliance with the physician health program established under chapter 43-17.3.

Source:

S.L. 1890, ch. 93, § 3; R.C. 1895, § 277; R.C. 1899, § 277; S.L. 1905, ch. 148, § 1; R.C. 1905, § 296; S.L. 1911, ch. 189, § 11; C.L. 1913, § 468; R.C. 1943, § 43-1731; S.L. 1957, ch. 302, § 13; 1957 Supp., § 43-1731; S.L. 1969, ch. 395, § 6; 1975, ch. 406, § 1; 1977, ch. 130, § 30; 1981, ch. 435, § 9; 1983, ch. 479, § 2; 1987, ch. 525, § 12; 1993, ch. 54, § 106; 1993, ch. 426, § 5; 1997, ch. 373, § 1; 1999, ch. 380, § 5; 2001, ch. 378, § 2; 2003, ch. 225, § 5; 2013, ch. 119, § 3; 2017, ch. 289, § 2, effective August 1, 2017; 2019, ch. 355, § 5, effective August 1, 2019.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Participation in abortion not mandatory, see N.D.C.C. § 23-16-14.

Notes to Decisions

Administrative Proceeding.

A proceeding to revoke a physician’s license is administrative in character. In re Shortridge, 53 N.D. 614, 207 N.W. 442, 1926 N.D. LEXIS 12 (N.D. 1926).

Continued Pattern of Inappropriate Care.

There was evidence supporting the determination of the North Dakota State Board of Medical Examiners that the doctor engaged in a continued pattern of inappropriate care of several patients in violation of N.D.C.C. § 43-17-31(21), and failed to appropriately document medical records for those patients, which reflected a serious departure from the appropriate standard of care; also, there was evidence that supported a determination that the doctor’s prior behavior, his attitude, and the probable logistics for supervision rendered the administrative law judge’s recommendation for monitoring unworkable. Furthermore, the Board was authorized by law to revoke the doctor’s license; thus, the district court erred in reversing the Board’s order revoking the doctor’s license. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Dishonorable, Unethical or Unprofessional Conduct.

Administrative law judge’s determination that conduct of physician who engaged in consensual sexual relationship with an “extremely troubled” patient he was treating for bipolar disorder constituted the performance of dishonorable, unethical or unprofessional conduct likely to deceive, defraud or harm the public in violation of subsection (6) was upheld. Larsen v. Commission on Med. Competency, 1998 ND 193, 585 N.W.2d 801, 1998 N.D. LEXIS 208 (N.D. 1998).

Due Process.

Doctor, whose license to practice medicine was revoked by the North Dakota State Board of Medical Examiners, had no due process right to a face-to-face confrontation with the Board. Jones v. N.D. State Bd. of Med. Exam'rs - Investigative Panel B, 2005 ND 22, 691 N.W.2d 251, 2005 N.D. LEXIS 14 (N.D. 2005).

Court preliminarily enjoined enforcement of an abortion provision making it punishable through a disciplinary action if a physician failed to determine whether a fetal heartbeat was detectible because the provision violated the Due Process Clause. MKB Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900, 2013 U.S. Dist. LEXIS 102620 (D.N.D. 2013), dismissed without prejudice in part, 2013 U.S. Dist. LEXIS 191752 (D.N.D. Sept. 9, 2013).

Enforcement of Settlement Stipulation.

Board’s enforcement of a settlement stipulation entered into to end an investigation of a doctor’s North Dakota medical practice initiated upon the revocation of his license to practice medicine in Minnesota, in which the doctor agreed not to use any “treatment methodology found by the Minnesota Board of Medical Examiners to be outside of the range of reasonably acceptable medical practice in the State of Minnesota,” by suspending doctor’s license to practice for one year, did not work manifest injustice, and would not be overturned by the Supreme Court. Sletten v. Briggs, 448 N.W.2d 607, 1989 N.D. LEXIS 226 (N.D. 1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1135, 107 L. Ed. 2d 1041, 1990 U.S. LEXIS 805 (U.S. 1990).

False Answer.

Where Administrative Law Judge made factual findings that physician falsely answered “NO” to license renewal application question asking if physician had any serious physical or mental illness and whether physician had received treatment for any mental illness since his last application for license renewal, Board of Medical Examiners’ conclusion of law that physician had violated subsection (1) was supported by the findings of fact. Larsen v. Commission on Med. Competency, 1998 ND 193, 585 N.W.2d 801, 1998 N.D. LEXIS 208 (N.D. 1998).

Gross Negligence in the Practice of Medicine.
—Necessity of Expert Testimony.

Expert testimony was unnecessary to establish that a doctor’s conduct was gross negligence in the practice of medicine within the meaning of N.D.C.C. § 43-17-31(15) where the doctor’s own testimony established the required standard of care and his deviation from it. Huff v. N.D. State Bd. of Med. Examiners-Investigative Panel, 2004 ND 225, 690 N.W.2d 221, 2004 N.D. LEXIS 362 (N.D. 2004).

Expert testimony was unnecessary to establish that the doctor’s conduct was dishonorable, unethical, and unprofessional and likely to deceive, defraud, or harm the public, in violation of N.D.C.C. § 43-17-31(6), where the doctor’s own testimony established the required standard of care and his deviation from it. Huff v. N.D. State Bd. of Med. Examiners-Investigative Panel, 2004 ND 225, 690 N.W.2d 221, 2004 N.D. LEXIS 362 (N.D. 2004).

Sexual Abuse, Misconduct or Exploitation.

Administrative law judge’s determination that conduct of physician who engaged in consensual sexual relationship with an “extremely troubled” patient he was treating for bipolar disorder constituted sexual abuse, misconduct or exploitation related to the physician’s practice of medicine in violation of subsection (16) was upheld. Larsen v. Commission on Med. Competency, 1998 ND 193, 585 N.W.2d 801, 1998 N.D. LEXIS 208 (N.D. 1998).

Writing Prescriptions Over the Internet.

Reasoning mind reasonably could have found that a doctor’s conduct in repeatedly writing prescriptions for patients over the Internet without first examining them or obtaining appropriate information from them was illegal. Jones v. N.D. State Bd. of Med. Exam'rs - Investigative Panel B, 2005 ND 22, 691 N.W.2d 251, 2005 N.D. LEXIS 14 (N.D. 2005).

Collateral References.

Office: constitutionality and construction of statutes or regulations prohibiting one who has no license to practice medicine from owning, maintaining or operating an office therefor, 20 A.L.R.2d 808.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Alcoholism, narcotics addiction or misconduct with respect to alcoholic beverages or narcotics as ground for revocation or suspension of license to practice medicine, 93 A.L.R.2d 1398.

False claims, medical reports or bills for medical services in personal injury litigation, revocation or suspension of physician’s or surgeon’s license for, 95 A.L.R.2d 873.

Incompetency: professional incompetency as ground for disciplinary measure against physician or dentist, 28 A.L.R.3d 487.

Pretrial discovery in disciplinary proceedings against physician, 28 A.L.R.3d 1440.

Mandamus to compel disciplinary investigation or action against physician or attorney, 33 A.L.R.3d 1429.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine, 61 A.L.R.3d 357.

Physician’s or other healer’s conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.

Physician’s or other healer’s conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Physician’s tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

Tortious maintenance or removal of life supports, 58 A.L.R.4th 222.

Improper or immoral sexually related conduct toward patient as ground for disciplinary action against physician, dentist, or other licensed healer, 59 A.L.R.4th 1104.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

Propriety of questioning expert witness regarding specific incidents or allegations of expert’s unprofessional conduct or professional negligence, 11 A.L.R.5th 1.

State and federal regulation of prescribing medication over the internet, 3 A.L.R.6th 1.

Wrongful or Excessive Prescription of Drugs as Ground for Revocation or Suspension of Physician’s or Dentist’s License to Practice. 19 A.L.R.6th 577.

Law Reviews.

North Dakota Supreme Court Review (Huff v. North Dakota State Board of Medical Examiners-Investigative Panel B), 81 N.D. L. Rev. 585 (2005).

Implied Waiver of Physician and Psychotherapist-Patient Privilege in North Dakota Medical Malpractice and Personal Injury Litigation, 83 N.D. L. Rev. 855 (2007).

North Dakota Supreme Court Review (North Dakota State Bd. of Med. Examiners- Investigative Panel B v. Hsu), 83 N.D. L. Rev. 1085 (2007).

43-17-31.1. Costs of prosecution — Disciplinary proceedings.

In any order or decision issued by the board in resolution of a disciplinary proceeding in which disciplinary action is imposed against a physician or physician assistant, the board may direct any physician or physician assistant to pay the board a sum not to exceed the reasonable and actual costs, including reasonable attorney’s fees, incurred by the board and investigative panels of the board in the investigation and prosecution of the case. If applicable, the physician’s or physician assistant’s license may be suspended until the costs are paid to the board. A physician or physician assistant may challenge the reasonableness of any cost item in a hearing under chapter 28-32 before an administrative law judge. The administrative law judge may approve, deny, or modify any cost item, and the determination of the judge is final. The hearing must occur before the physician’s license or physician assistant’s license may be suspended for nonpayment.

Source:

S.L. 1991, ch. 462, § 1; 2001, ch. 378, § 3; 2019, ch. 355, § 6, effective August 1, 2019.

43-17-31.2. Limitations on disciplinary actions.

The board may not take disciplinary action against a licensee based solely on the licensee prescribing or dispensing ivermectin for the off-label treatment or prevention of severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2, or any mutation or viral fragments of SARS-CoV-2. This section does not limit the board from taking a disciplinary action on another basis, such as unlicensed practice, inappropriate documentation, or substandard care, or any basis that would in the board’s determination harm the patient.

Source:

S.L. 2021, 1st Sp. Sess. ch. 559, § 3, effective November 15, 2021.

43-17-32. Appeal from decision of board refusing, suspending, or revoking a license. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-32.1. Temporary suspension — Appeal.

  1. When, based on verified evidence, the board determines by a clear and convincing standard that the evidence presented to the board indicates that the continued practice by the physician would create a significant risk of serious and ongoing harm to the public while a disciplinary proceeding is pending, and that immediate suspension of the physician’s license is required to reasonably protect the public from that risk of harm, the board may order a temporary suspension ex parte. For purposes of this section, “verified evidence” means testimony taken under oath and based on personal knowledge. The board shall give prompt written notice of the suspension to the physician, which must include a copy of the order and complaint, the date set for a full hearing, and a specific description of the nature of the evidence, including a list of all known witnesses and a description of any documents relied upon by the board in ordering the temporary suspension which, upon request, must be made available to the physician.
  2. An ex parte temporary suspension remains in effect until a final order is issued after a full hearing or appeal under this section or until the suspension is otherwise terminated by the board.
  3. The board shall conduct a hearing on the merits of the allegations to determine what disciplinary action, if any, shall be taken against the physician who is the subject of the ex parte suspension. That hearing must be held not later than thirty days from the issuance of the ex parte temporary suspension order. The physician is entitled to a continuance of the thirty-day period upon request for a period determined by the hearing officer.
  4. The physician may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The court shall give priority to the appeal for prompt disposition thereof.
  5. Any medical record of a patient, or other document containing personal information about a patient, which is obtained by the board is an exempt record as defined in section 44-04-17.1.

Source:

S.L. 1985, ch. 482, § 1; 1993, ch. 426, § 6; 1997, ch. 373, § 2; 2001, ch. 378, § 4; 2001, ch. 393, § 2.

Notes to Decisions

Appeal.
—District Court.

Temporary suspensions under this section are appealable to the district court, and the appropriate standard of review is whether the board of medical examiners’ action was reasonable or arbitrary. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 1996 N.D. LEXIS 271 (N.D. 1996).

—Procedure.

Temporary suspensions of physician’s licenses are not final orders, and the requirements of N.D.C.C. ch. 28-32 do not apply to appeals of such suspensions. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 1996 N.D. LEXIS 271 (N.D. 1996).

—Supreme Court.

Because subsection (4) does not expressly prohibit appeals of temporary suspensions to the supreme court, the legislature did not intend to forbid such appeals, and the standard of review is to determine whether the board of medical examiners’s action was reasonable or arbitrary. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 1996 N.D. LEXIS 271 (N.D. 1996).

Suspension Proper.

Where evidence showed that physician had a friend rent a shed for him, the shed contained poisons and other chemicals, explosive devices, and literature on the use of these materials, and physician was the only person with access to the shed, evidence was sufficient for board of medical examiners to find an imminent and substantial risk to the public if physician’s license was not suspended. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 1996 N.D. LEXIS 271 (N.D. 1996).

Doctor requested a continuance to personally appear before the North Dakota State Board of Medical Examiners at its March 19, 2004, meeting, but, at that meeting, the Board instituted proceedings on the March 19, 2004, complaint, which incorporated the seven allegations of inappropriate care and inappropriate documentation from the 2003 complaint, plus three additional claims of inappropriate care, and then delayed disposition on the administrative law judge’s recommended sanction for the 2003 complaint; the delay in the adoption of an order in the 2003 case was effectively superseded by the 2004 action and the Board’s temporary suspension of the doctor’s license continued until completion of the 2004 case. The statutes did not preclude the Board from temporarily suspending the doctor’s license and initiating a new proceeding that incorporated the allegations from the 2003 complaint; thus, the Board’s action in delaying disposition on the 2003 complaint did not preclude the Board from considering the cumulative effect of the conduct from that complaint in the proceedings on the 2004 complaint, including the determination of an appropriate sanction. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

43-17-33. Use of fraudulent device in obtaining a license — Fraudulent impersonation of physician — Penalty. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-34. Practicing without a license — Violation of chapter — Penalty.

Any person who practices medicine in this state without complying with the provisions of this chapter, and any person who violates any of the provisions of this chapter for which another penalty is not specified is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of injunction is available to restrain and enjoin violations of any provisions of this chapter without proof of actual damages sustained by any person.

Source:

S.L. 1890, ch. 93, § 6; R.C. 1895, § 280; R.C. 1899, § 280; S.L. 1905, ch. 148, § 1; R.C. 1905, § 299; S.L. 1911, ch. 189, § 13; C.L. 1913, § 470; R.C. 1943, § 43-1734; S.L. 1957, ch. 302, § 15; 1957 Supp., § 43-1734; S.L. 1975, ch. 106, § 486; 1983, ch. 480, § 1.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Separate or continuing offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts as, 99 A.L.R.2d 654.

Acupuncture as illegal practice of medicine, 72 A.L.R.3d 1257.

43-17-35. Enforcement of chapter — Duty of secretary-treasurer. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-36. Physician practicing medicine while intoxicated. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-37. Emergency treatment by resident physician.

Any physician or surgeon licensed under the provisions of this chapter who in good faith renders in this state emergency care at the scene of the emergency is expected to render only such emergency care as in the person’s judgment is at the time indicated.

Source:

S.L. 1961, ch. 287, § 1.

Cross-References.

Physician acting pursuant to N.D.C.C. §§ 43-17-37 and 43-17-38 excluded from motor vehicle accident “good Samaritan” provision, see N.D.C.C. § 39-08-04.1.

Collateral References.

Construction and application of “good Samaritan” statutes, 68 A.L.R.4th 294.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley V. Khokha, 2007 Nd 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

43-17-38. Emergency treatment by nonresident physician.

Any physician or surgeon duly licensed to practice as a physician or surgeon in another state of the United States who renders in this state emergency care at the scene of the emergency may only be held to the degree of care as specified in section 43-17-37, and may not be deemed to be practicing medicine within this state as contemplated by this chapter.

Source:

S.L. 1961, ch. 287, § 2.

Law Reviews.

For Case Comment: Health — Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

43-17-39. Qualified doctors of osteopathy may be licensed. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17-40. Limitation of liability — Legislative intent.

No physician, surgeon, hospital, blood bank, tissue bank, or other person or entity who donates, obtains, prepares, transplants, injects, transfuses, or otherwise transfers, or who assists or participates in obtaining, preparing, transplanting, injecting, transfusing, or transferring any tissue, organ, blood, or component thereof from one or more human beings, living or dead, to another human being, may be liable as the result of any such activity, save and except that each such person or entity remains liable for the person’s or entity’s own negligence or willful misconduct only.

The availability of scientific knowledge, skills, and materials for the transplantation, injection, transfusion, or transfer of human tissue, organs, blood, and components thereof is important to the health and welfare of the people of this state. The imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures inhibits the exercise of sound medical judgment and restricts the availability of important scientific knowledge, skills, and materials. It is therefore the public policy of this state to promote the health and welfare of the people by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct.

Source:

S.L. 1971, ch. 439, §§ 1, 2.

Cross-References.

Uniform Anatomical Gift Act, see N.D.C.C. ch. 23-06.2.

Collateral References.

Tort liability of physician or hospital in connection with organ or tissue transplant procedures, 76 A.L.R.3d 890.

Death: test of death for organ transplant purposes, 76 A.L.R.3d 913.

Liability of hospital, physician, or other individual medical practitioner for injury or death resulting from blood transfusion, 20 A.L.R.4th 136.

Liability of blood supplier or donor for injury or death resulting from blood transfusion, 24 A.L.R.4th 508.

Discovery of identity of blood donors, 56 A.L.R.4th 755.

Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.

Physician’s use of patient’s tissues, cells, or bodily substances for medical research or economic purposes, 16 A.L.R.5th 143.

Liability for donee’s contraction of Acquired Immune Deficiency Syndrome (AIDS) from blood transfusion, 64 A.L.R.5th 333.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient, 65 A.L.R.5th 357.

Validity, construction, and application of blood shield statutes, 75 A.L.R.5th 229.

43-17-41. Duty of physicians and others to report injury — Penalty.

  1. Any physician, physician assistant, naturopath licensed under chapter 43-58, acupuncturist licensed under chapter 43-61, or any individual licensed under chapter 43-12.1 who performs any diagnosis or treatment for any individual suffering from any wound, injury, or other physical trauma:
    1. Inflicted by the individual’s own act or by the act of another by means of a knife, gun, or pistol shall as soon as practicable report the wound, injury, or trauma to a law enforcement agency in the county in which the care was rendered; or
    2. Which the individual performing diagnosis or treatment has reasonable cause to suspect was inflicted in violation of any criminal law of this state, shall as soon as practicable report the wound, injury, or trauma to a law enforcement agency in the county in which the care was rendered.
  2. The report under subsection 1 must state the name of the injured individual and the character and extent of the individual’s injuries, except when the individual’s physical injury is the result of a sexual offense, as defined in chapter 12.1-20, in which case the individual’s name, address, and any identifying information may not be included in the report without the individual’s written release.
  3. When a report of domestic violence, as defined in section 14-07.1-01, or a report of physical injury resulting from a sexual offense, as defined in chapter 12.1-20, is made to a law enforcement agency as required by this section, the injured individual must be provided with information regarding a domestic violence sexual assault organization as defined in section 14-07.1-01 or other victims’ assistance program by the physician, physician assistant, naturopath, acupuncturist licensed under chapter 43-61, or any individual licensed under chapter 43-12.1, unless it is known that the information has previously been provided to the injured individual.
  4. The reports mandated by this section must be made as soon as practicable and may be either oral or in writing. Oral reports must be followed by written reports within forty-eight hours if so requested by the sheriff or state’s attorney to whom the oral report is originally made.
  5. Any individual required to report as provided by this section who willfully fails to do so is guilty of an infraction.
  6. Any individual making or not making a report in good faith pursuant to this section is immune from liability for making or not making a report.

Source:

S.L. 1977, ch. 403, § 1; 2001, ch. 379, § 1; 2011, ch. 331, § 2; 2015, ch. 298, § 1, effective August 1, 2015; 2015, ch. 308, § 2, effective July 1, 2015.

Cross-References.

Child abuse or neglect, duty to report, see N.D.C.C. ch. 50-25.1.

Collateral References.

Products liability, sufficiency of evidence to support product misuse defense in action concerning weapons and ammunition, 59 A.L.R.4th 102.

43-17-42. Employment of physicians by hospitals — Employment of physicians by nonprofit entities and charitable trusts for hyperbaric oxygen therapy.

  1. Notwithstanding any other provision of law, a hospital licensed under chapter 23-16 may employ directly or indirectly a physician if the employment relationship between the physician and hospital is evidenced by a written contract. The written contract must contain language to the effect the hospital’s employment relationship with the physician may not affect the exercise of the physician’s independent judgment in the practice of medicine, and the physician’s independent judgment in the practice of medicine is in fact unaffected by the physician’s employment relationship with the hospital. Under this subsection a hospital is not engaged in the practice of medicine.
  2. Notwithstanding any other provision of law, a nonprofit entity or charitable trust may employ directly or indirectly a physician to conduct hyperbaric oxygen therapy if the employment relationship between the physician and nonprofit entity or charitable trust is evidenced by a written contract. The written contract must contain language to the effect the nonprofit entity’s or charitable trust’s employment relationship with the physician may not affect the exercise of the physician’s independent judgment in the practice of medicine, and the physician’s independent judgment in the practice of medicine is in fact unaffected by the physician’s employment relationship with the nonprofit entity or charitable trust. Under this subsection a nonprofit entity or charitable trust is not engaged in the practice of medicine.

Source:

S.L. 1991, ch. 460, § 1; 1993, ch. 429, § 1; 2021, ch. 314, § 1, effective April 1, 2021.

43-17-43. Topical fluoride varnish.

A licensed physician or physician assistant may apply topical fluoride varnish to an individual in accordance with rules adopted by the board.

Source:

S.L. 2007, ch. 368, § 1.

43-17-44. Standard of care and professional ethics.

A licensee is held to the same standard of care and same ethical standards, whether practicing traditional in-person medicine or telemedicine. The following apply in the context of telemedicine:

  1. Professional ethical standards require a practitioner to practice only in areas in which the practitioner has demonstrated competence, based on the practitioner’s training, ability, and experience. In assessing a licensee’s compliance with this ethical requirement, the board shall give consideration to board certifications and specialty groups’ telemedicine standards.
  2. A licensee practicing telemedicine shall establish a bona fide relationship with the patient before the diagnosis or treatment of a patient. A licensee practicing telemedicine shall verify the identity of the patient seeking care and shall disclose, and ensure the patient has the ability to verify, the identity and licensure status of any licensee providing medical services to the patient.
  3. Before initially diagnosing or treating a patient for a specific illness or condition, an examination or evaluation must be performed. An examination or evaluation may be performed entirely through telemedicine, if the examination or evaluation is equivalent to an in-person examination.
    1. An examination utilizing secure videoconferencing or store-and-forward technology for appropriate diagnostic testing and use of peripherals that would be deemed necessary in a like in-person examination or evaluation meets this standard, as does an examination conducted with an appropriately licensed intervening health care provider, practicing within the scope of the provider’s profession, providing necessary physical findings to the licensee. An examination or evaluation consisting only of a static online questionnaire or an audio conversation does not meet the standard of care.
    2. Once a licensee conducts an acceptable examination or evaluation, whether in-person or by telemedicine, and establishes a patient-licensee relationship, subsequent followup care may be provided as deemed appropriate by the licensee, or by a provider designated by the licensee to act temporarily in the licensee’s absence. In certain types of telemedicine utilizing asynchronous store-and-forward technology or electronic monitoring, such as teleradiology or intensive care unit monitoring, it is not medically necessary for an independent examination of the patient to be performed.
  4. A licensee practicing telemedicine is subject to all North Dakota laws governing the adequacy of medical records and the provision of medical records to the patient and other medical providers treating the patient.
  5. A licensee must have the ability to make appropriate referrals of patients not amenable to diagnosis or complete treatment through a telemedicine encounter, including a patient in need of emergent care or complementary in-person care.

Source:

S.L. 2019, ch. 354, § 4, effective August 1, 2019.

43-17-45. Prescribing — Controlled substances.

  1. A licensee who has performed a telemedicine examination or evaluation meeting the requirements of this chapter may prescribe medications according to the licensee’s professional discretion and judgment. Opioids may only be prescribed through telemedicine if prescribed as a federal food and drug administration approved medication assisted treatment for opioid use disorder or to a patient in a hospital or long-term care facility. Opioids may not be prescribed through a telemedicine encounter for any other purpose.
  2. A licensee who, pursuant to this chapter, prescribes a controlled substance, as defined by North Dakota law, shall comply with all state and federal laws regarding the prescribing of a controlled substance, and shall participate in the North Dakota prescription drug monitoring program.

Source:

S.L. 2019, ch. 354, § 5, effective August 1, 2019.

43-17-46. Payment of fees under the interstate medical licensure compact.

Fees levied under subsection 1 of article XIII of the interstate medical licensure compact by the interstate medical licensure compact commission to the state of North Dakota must be paid by the board through the board’s funding mechanism, and the board may not request funds deposited in the general fund for the fee.

Source:

S.L. 2019, ch. 357, § 1, effective August 1, 2019.

CHAPTER 43-17.1 Board of Medicine Investigative Panels

43-17.1-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of medicine.
  2. “Physician” means a person engaged in the practice of medicine in this state pursuant to the provisions of chapter 43-17.

Source:

S.L. 1977, ch. 251, § 2; 1999, ch. 381, § 3; 2015, ch. 297, § 26, effective August 1, 2015.

Cross-References.

Insurance commissioner, see N.D.C.C. ch. 26.1-01.

Collateral References.

Recovery in death action for failure to diagnose incurable disease which caused death, 64 A.L.R.4th 1232.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

Medical malpractice: presumption or inference from failure of hospital or doctor to produce relevant medical records, 69 A.L.R.4th 906.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury, 9 A.L.R.5th 746.

Malpractice in treatment of skin disease, disorder, blemish, or scar, 19 A.L.R.5th 563.

43-17.1-02. Investigative panels of the board.

  1. For the purpose of investigating complaints or other information that might give rise to a disciplinary proceeding against a physician or physician assistant, the president of the board shall designate two investigative panels, each composed of six members of the board. Five members of each panel must be physician members of the board. One member of each panel must be a public member of the board.
  2. Each investigative panel shall select a chairman and a vice chairman from its own members and a secretary who may or may not be a member of the panel and who shall keep minutes of all meetings thereof.
  3. Each investigative panel may engage investigators, medical experts, and such other experts as the panel in its discretion determines to be necessary to accomplish its purposes. The attorney general shall provide counsel to the investigative panels, but an investigative panel may employ special counsel in any proceeding wherein it decides it is advisable.
  4. Cases for investigation must be assigned to each investigative panel by the president of the board.

Source:

S.L. 1977, ch. 251, § 19; 1999, ch. 381, § 4; 2001, ch. 378, § 5; 2005, ch. 359, § 2; 2019, ch. 354, § 6, effective August 1, 2019.

43-17.1-03. Compensation. [Repealed]

Repealed by S.L. 1999, ch. 381, § 11.

43-17.1-04. Meetings of investigative panels.

Meetings of the investigative panels must be held at least once annually in Bismarck, North Dakota, and at such other place or places within the state and at such times as each investigative panel may determine. A majority of the members of an investigative panel constitutes a quorum, and no action of an investigative panel is effective without the concurrence therein of a majority of the members present at the time of the decision. Special meetings of an investigative panel may be called at any time by the chairman or vice chairman of an investigative panel or upon the written request of any three members of an investigative panel.

Source:

S.L. 1977, ch. 251, § 21; 1999, ch. 381, § 5.

43-17.1-05. Complaints.

  1. Any person may make or refer written complaints to the investigative panels with reference to the acts, activities, or qualifications of any physician or physician assistant licensed to practice in this state, or to request that an investigative panel review the qualifications of any physician or physician assistant to continue to practice in this state. Any person that, in good faith, makes a report to the investigative panels under this section is not subject to civil liability for making the report. For purposes of any civil proceeding, the good faith of any person that makes a report pursuant to this section is presumed. Upon receipt of any complaint or request, the investigative panel shall conduct the investigation as the panel deems necessary to determine whether any physician or physician assistant has committed any of the grounds for disciplinary action provided for by law. Upon completion of the investigation of the investigative panel, the investigative panel shall make a finding that the investigation discloses that:
    1. There is insufficient evidence to warrant further action;
    2. The conduct of the physician or physician assistant does not warrant further proceedings but the investigative panel determines possible errant conduct occurred that could lead to significant consequences if not corrected. In such a case, a confidential letter of concern may be sent to the physician or physician assistant; or
    3. The conduct of the physician or physician assistant indicates the physician or physician assistant may have committed any of the grounds for disciplinary action provided for by law and which warrants further proceedings.
  2. If the investigative panel determines a formal hearing should be held to determine whether any licensed physician or physician assistant has committed any of the grounds for disciplinary action provided for by law, the panel shall inform the respondent physician or physician assistant involved of the specific charges to be considered by serving upon that individual a copy of a formal complaint filed with the board for disposition pursuant to the provisions of chapter 28-32. The board members who have served on the investigative panel may not participate in any proceeding before the board relating to the complaint. The complaint must be prosecuted before the board by the attorney general or one of the attorney general’s assistants.
  3. If an investigative panel finds there are insufficient facts to warrant further investigation or action, the complaint must be dismissed and the matter is closed. The investigative panel shall provide written notice to the person filing the original complaint and the individual who is the subject of the complaint of the investigative panel’s final action or recommendations, if any, concerning the complaint.

Source:

S.L. 1977, ch. 251, § 22; 1991, ch. 463, § 1; 1997, ch. 373, § 3; 1999, ch. 381, § 6; 2001, ch. 378, § 6; 2015, ch. 297, § 27, effective August 1, 2015; 2019, ch. 354, § 7, effective August 1, 2019.

Cross-References.

Revocation, suspension or refusal to grant license, grounds, see N.D.C.C. § 43-17-31.

Notes to Decisions

Investigator’s Conflict of Interest.

Doctor’s right to due process was not violated during medical board disciplinary proceedings where one of the investigators for the North Dakota State Board of Medical Examiners had an alleged personal and financial conflict of interest in the case, because the statutory scheme for the Board and its investigative panels precluded Board members, like the investigator who served on an investigative panel, from participating in adjudicatory proceedings before the Board on that complaint. The statutory scheme for the Board’s investigative panels, coupled with the other statutory procedures for adjudication by the Board, provided adequate procedural safeguards to satisfy the requirements for due process, and the investigator’s participation in the investigation of the complaints did not violate due process and, therefore, the district court did not err in deciding the Board did not violate the doctor’s due process or equal protection rights. N.D. State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, 726 N.W.2d 216, 2007 N.D. LEXIS 9 (N.D. 2007).

Collateral References.

Office: constitutionality and construction of statutes or regulations prohibiting one who has no license to practice medicine from owning, maintaining or operating an office therefor, 20 A.L.R.2d 808.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Alcoholism, narcotics addiction or misconduct with respect to alcoholic beverages or narcotics as ground for revocation or suspension of license to practice medicine, 93 A.L.R.2d 1398.

False claims, medical reports or bills for medical services in personal injury litigation, revocation or suspension of physician’s or surgeon’s license for, 95 A.L.R.2d 873.

Incompetency: professional incompetency as ground for disciplinary measure against physician or dentist, 28 A.L.R.3d 487.

Pretrial discovery in disciplinary proceedings against physician, 28 A.L.R.3d 1440.

Mandamus to compel disciplinary investigation or action against physician or attorney, 33 A.L.R.3d 1429.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine, 61 A.L.R.3d 357.

Physician’s or other healer’s conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.

Physician’s or other healer’s conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

Medical malpractice: hospital’s liability for injury allegedly caused by failure to have properly qualified staff, 62 A.L.R.4th 692.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

Improper or immoral sexually related conduct toward patient as ground for disciplinary action against physician, dentist or other licensed healer, 59 A.L.R.4th 1104.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

Propriety of questioning expert witness regarding specific incidents or allegations of expert’s unprofessional conduct or professional negligence, 11 A.L.R.5th 1.

43-17.1-05.1. Reporting requirements — Penalty.

  1. A physician, a physician assistant, a health care institution in the state, a state agency, or a law enforcement agency in the state having actual knowledge that a licensed physician or physician assistant may have committed any of the grounds for disciplinary action provided by law or by rules adopted by the board promptly shall report that information in writing to the investigative panel of the board. A medical licensee or any institution from which the medical licensee voluntarily resigns or voluntarily limits the licensee’s staff privileges shall report that licensee’s action to the investigative panel of the board if that action occurs while the licensee is under formal or informal investigation by the institution or a committee of the institution for any reason related to possible medical incompetence, unprofessional conduct, or mental or physical impairment.
  2. Upon receiving a report concerning a licensee an investigative panel shall, or on its own motion an investigative panel may, investigate any evidence that appears to show a licensee is or may have committed any of the grounds for disciplinary action provided by law or by rules adopted by the board.
  3. A person required to report under this section that makes a report in good faith is not subject to criminal prosecution or civil liability for making the report. For purposes of any civil proceeding, the good faith of any person that makes a report pursuant to this section is presumed. A physician who obtains information in the course of a physician-patient relationship in which the patient is another physician is not required to report if the treating physician successfully counsels the other physician to limit or withdraw from practice to the extent required by the impairment. A physician who obtains information in the course of a professional peer review pursuant to chapter 23-34 is not required to report pursuant to this section. A physician who does not report information obtained in a professional peer review is not subject to criminal prosecution or civil liability for not making a report. For purposes of this section, a person has actual knowledge if that person acquired the information by personal observation or under circumstances that cause that person to believe there exists a substantial likelihood that the information is correct.
  4. An agency or health care institution that violates this section is guilty of a class B misdemeanor. A physician or physician assistant who violates this section is subject to administrative action by the board as specified by law or by administrative rule.

Source:

S.L. 1993, ch. 426, § 7; 1997, ch. 234, § 3; 1997, ch. 373, § 4; 1999, ch. 381, § 7; 2015, ch. 297, § 28, effective August 1, 2015; 2019, ch. 354, § 8, effective August 1, 2019.

43-17.1-06. Powers of the board’s investigative panels.

The board’s investigative panels may:

  1. Subpoena witnesses and physician and hospital records relating to the practice of any physician or physician assistant under investigation. The confidentiality of the records by any other statute or law does not affect the validity of an investigative panel’s subpoena nor the admissibility of the records in board proceedings; however, the proceedings and records of a committee which are exempt from subpoena, discovery, or introduction into evidence under chapter 23-34 are not subject to this subsection.
  2. Hold preliminary hearings.
  3. Upon probable cause, require any physician or physician assistant under investigation to submit to a physical, psychiatric, or competency examination or an addiction evaluation.
  4. Appoint special masters to conduct preliminary hearings.
  5. Employ independent investigators if necessary.
  6. Hold confidential conferences with any complainant or any physician or physician assistant with respect to any complaint.
  7. File a formal complaint against any licensed physician or physician assistant with the board.

Source:

S.L. 1977, ch. 251, § 23; 1993, ch. 426, § 8; 1997, ch. 234, § 4; 1999, ch. 50, § 64; 1999, ch. 381, § 8; 2001, ch. 378, § 7; 2015, ch. 297, § 29, effective August 1, 2015; 2019, ch. 225, § 15, effective August 1, 2019; 2019, ch. 354, § 9, effective August 1, 2019.

Note.

Section 43-17.1-06 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 9 of Chapter 354, Session Laws 2019, Senate Bill 2094; and Section 15 of Chapter 225, Session Laws 2019, Senate Bill 2240.

This chapter heading is set out above to reflect a correction from the state.

43-17.1-07. Expanded jurisdiction of the board. [Repealed]

Repealed by S.L. 1987, ch. 525, § 13.

43-17.1-08. Communication to investigative panel privileged.

Communications to the investigative panels and their agents are privileged, and no member of the investigative panels nor any of their agents may be compelled to testify with respect thereto in any proceedings except in formal proceedings conducted before the board. All records of the investigative panels, except their financial records, are confidential. Notwithstanding the provisions of this section, if an investigative panel determines that the records of the investigative panel disclose a possible violation of state or federal criminal law, the investigative panel may provide the records to the appropriate law enforcement agency.

Source:

S.L. 1977, ch. 251, § 25; 1989, ch. 525, § 1; 1999, ch. 381, § 9; 2015, ch. 297, § 30, effective August 1, 2015.

Collateral References.

Right of voluntary disclosure of privileged proceedings of hospital medical review or doctor evaluation processes, 60 A.L.R.4th 1273.

43-17.1-09. Immunity.

Members of the investigative panels, special masters appointed by an investigative panel, and agents of an investigative panel, are immune from any liability of any kind based upon any acts or omissions in the course of the performance of responsibilities in an official capacity except liability for bodily injury arising out of accidents caused, or contributed to, by the negligence of the member or agent.

Source:

S.L. 1977, ch. 251, § 26; 1999, ch. 381, § 10.

CHAPTER 43-17.2 Physician Loan Repayment Program [Repealed]

§ 43-17.2-01. State-community matching physician loan repayment program. [Repealed]

§ 43-17.2-02. Powers of state health council. [Repealed]

§ 43-17.2-03. Physician selection criteria — Eligibility for loan repayment. [Repealed]

§ 43-17.2-04. Community selection criteria. [Repealed]

§ 43-17.2-05. Eligible loans. [Repealed]

§ 43-17.2-06. Breach of loan repayment contract. [Repealed]

§ 43-17.2-07. Release from contract obligation. [Repealed]

§ 43-17.2-08. Term of obligated service. [Repealed]

§ 43-17.2-09. Payment. [Repealed]

[Repealed by S.L. 2015, ch. 294, § 8]

§ 43-17.2-01. State-community matching physician loan repayment program. [Repealed]

Source:

S.L. 1991, ch. 464, § 1; 2005, ch. 360, § 1; 2015, ch. 297, § 31, effective August 1, 2015; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-02. Powers of state health council. [Repealed]

Source:

S.L. 1991, ch. 464, § 2; 2005, ch. 360, § 2; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-03. Physician selection criteria — Eligibility for loan repayment. [Repealed]

Source:

S.L. 1991, ch. 464, § 3; 2005, ch. 360, § 3; 2011, ch. 3, § 19; 2015, ch. 297, § 31, effective August 1, 2015; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-04. Community selection criteria. [Repealed]

Source:

S.L. 1991, ch. 464, § 4; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-05. Eligible loans. [Repealed]

Source:

S.L. 1991, ch. 464, § 5; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-06. Breach of loan repayment contract. [Repealed]

Source:

S.L. 1991, ch. 464, § 6; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-07. Release from contract obligation. [Repealed]

Source:

S.L. 1991, ch. 464, § 7; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-08. Term of obligated service. [Repealed]

Source:

S.L. 1991, ch. 464, § 8; 2005, ch. 360, § 4; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-17.2-09. Payment. [Repealed]

Source:

S.L. 1991, ch. 464, § 9; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

CHAPTER 43-17.3 Physician Health Program

43-17.3-01. Definitions.

As used in this chapter:

  1. “Board” means the North Dakota board of medicine.
  2. “Committee or designated agency” means a committee or delegated agency of the physician health program which is composed of physicians and other professionals who have expertise in the areas of alcoholism, drug abuse, or mental illness and which is designated by the physician health program to perform any or all of the activities set forth in section 43-17.3-02 pursuant to agreement with the board.
  3. “Impairment” means the presence of any physical, mental, or behavioral disorder or pattern of alcohol or substance abuse which interferes with a licensee’s ability to engage safely in professional activities.
  4. “Licensee” means a physician or other health professional under the jurisdiction of the board, and includes an applicant for licensure or regulation by the board.
  5. “Physician health program” or “program” means a board-sanctioned program for the detection, intervention, and monitoring of licensees with conditions that could result in impairment.
  6. “Treatment plan” means a plan of care, rehabilitation, monitoring and maintenance, followup, or aftercare services or combination of any of these services provided by an organization or by an individual authorized by the board or the physician health program to provide such services for a licensee taking part in the physician health program.

Source:

S.L. 2013, ch. 323, § 1; 2015, ch. 297, § 33, effective August 1, 2015.

43-17.3-02. Physician health program.

  1. The board may enter an agreement with the physician health program for the program to undertake those functions and responsibilities specified in the agreement. The functions and responsibilities of the agreement may include any or all of the following:
    1. Contracting with agencies or providers of diagnostic, monitoring, or treatment services;
    2. Receiving and evaluating reports of licensees who may be experiencing potentially impairing conditions;
    3. Intervening in cases in which a licensee is determined to be in need of treatment;
    4. Referring licensees to appropriate services;
    5. Monitoring the treatment and aftercare services provided to licensees;
    6. Educating licensees and the public about the functions of the program and the program’s relationship to the board; and
    7. Performing other activities as agreed upon by the board and the physician health program.
  2. The board may participate, through its licensing fees or other specified funds, in the funding of the physician health program.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-03. Physician health program requirements.

In consultation with the board, the physician health program shall develop procedures for:

  1. Periodic reporting of statistical information regarding physician health program activity.
  2. Periodic disclosure and joint review of information the board deems appropriate regarding reports received, contacts of investigations made, and the disposition of each case. Except as expressly provided under this chapter, the physician health program may not disclose any personally identifiable information about licensee participants.
  3. Immediate reporting to the board the identity and results of any contact or investigation concerning an impaired licensee who is believed to constitute an imminent danger to the public or to the licensee.
  4. Reporting to the board, in a timely fashion, the identity and results of any contact or investigation concerning a potentially impaired licensee:
    1. Who refuses to cooperate with the program;
    2. Who refuses to submit to evaluation or treatment;
    3. Who is not in compliance with a contractual treatment plan; or
    4. Whose possible impairment is not substantially alleviated through treatment and:
      1. Who the program determines is unable to practice professionally with reasonable skill and safety by reason of illness related to the abuse of alcohol or other substances or as a result of any physical or mental condition; or
      2. Who may pose a threat to the health or safety of any individual.
  5. Reporting to the board, in a timely fashion, the identity of any licensee participant regarding whom the program learns of the filing of any disciplinary charges or actions or violations of chapter 43-17.
  6. Entering contractual agreements with each participant in the program which make clear the program procedures, the responsibilities of program participants, and the consequences of noncompliance with the program or with contractual agreements, including the program’s reporting obligations to the board.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-04. Evaluation.

If the board determines a licensee currently exhibits possible impairment, the board may direct that an evaluation of the licensee be conducted by the physician health program or by the committee or designated agency for the purpose of determining whether there is a current need for treatment or monitoring of the licensee to assure the licensee is able to practice safely. The physician health program shall report the findings of this evaluation to the board. As a condition of application, every applicant for initial licensure or renewal of licensure shall agree to submit to such an evaluation for cause within a specified time frame, and to the release of the results of the evaluation to the board.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-05. Self-reporting and self-referral.

  1. A licensee may voluntarily self-refer or self-report to the physician health program or the board that the licensee may have a potentially impairing condition.
  2. A licensee:
    1. Who under this section voluntarily seeks the assistance of the physician health program in assessing or dealing with a condition that could possibly lead to impairment will not be reported to the board solely on the basis of this self-referral. However, if a licensee who self-refers or self-reports refuses evaluation by the program; if the evaluation reveals evidence of a condition or impairment that could affect the licensee’s ability to practice or constitutes a threat to the safety of patients or the public; or the licensee refuses to cooperate with the treatment plan, monitoring and followup, or aftercare devised by the program, including any recommendation about current continuation in practice, the program shall report the identity and findings of the evaluation of the licensee to the board. Participation in the program does not protect a licensee from board action resulting from a report of the licensee’s possible violations of chapter 43-17.
    2. Who self-reports or self-refers to the board for a potentially impairing condition may be referred by the board to the physician health program in the manner prescribed by board policies, and subsequent reporting by the program to the board will be at the discretion and in the manner prescribed by the board.
    3. Who is participating in or who has completed a contract for treatment with and has been discharged from the physician health program, who is in full compliance with all facets of the treatment plan or has completed treatment and is compliant with aftercare, may answer in the negative on any question on the application to the board for licensure or licensure renewal regarding current impairment by that condition or those conditions for which the licensee is currently participating in or has been discharged from the physician health program. However, any recurrence of the impairing condition or conditions or the existence of other potentially impairing conditions that are not currently known to the physician health program must be reported on the application.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-06. Mandated reporting.

A report by a health professional, including a self-report or self-referral by a licensee to the physician health program, must be deemed to be a report to the board for the purposes of mandated reporting of physician impairment.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-07. Confidentiality of records.

  1. Notwithstanding section 44-04-18, except as otherwise provided in this chapter, all physician health program records containing identifying information about a licensee participant are confidential and may not be disclosed:
    1. To any third person, unless disclosure is reasonably necessary for the accomplishment of the purposes of intervention, rehabilitation, referral assistance, or support services; or
    2. In any legal or administrative proceeding, unless privilege or disclosure is otherwise required by law.
  2. Except as provided under this section, a staff member handling records for administrative purposes; a person engaged by the program to perform evaluations, monitoring, or followup; and a person in attendance at any meeting of a physician health program or of a committee or designated agency may not be required to testify as to the content of any findings, committee discussion, or proceedings.

Source:

S.L. 2013, ch. 323, § 1.

43-17.3-08. Liability.

  1. Notwithstanding any other provision of law, the board, the physician health program, committee or designated agency, or delegated individuals and members of any of these entities are not liable to any person for any acts, omissions, or recommendations made in good faith within the scope of responsibilities pursuant to this chapter.
  2. A person that in good faith and without malice which makes a report to the physician health program or the board under this section is not liable to any person for that report.

Source:

S.L. 2013, ch. 323, § 1.

CHAPTER 43-17.4 Interstate Medical Licensure Compact

43-17.4-01.

ARTICLE I — PURPOSE

In order to strengthen access to health care, and in recognition of the advances in the delivery of health care, the member states of the interstate medical licensure compact have allied in common purpose to develop a comprehensive process that complements the existing licensing and regulatory authority of state medical boards and provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. The compact creates another pathway for licensure and does not otherwise change a state’s existing medical practice act. The compact also adopts the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter, and therefore, requires the physician to be under the jurisdiction of the state medical board where the patient is located. State medical boards that participate in the compact retain the jurisdiction to impose an adverse action against a license to practice medicine in that state issued to a physician through the procedures in the compact.

ARTICLE II — DEFINITIONS

In this compact:

  1. “Bylaws” means those bylaws established by the interstate commission pursuant to article XI for its governance, or for directing and controlling its actions and conduct.
  2. “Commissioner” means the voting representative appointed by each member board pursuant to article XI.
  3. “Conviction” means a finding by a court, that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court must be considered final for purposes of disciplinary action by a member board.
  4. “Expedited license” means a full and unrestricted medical license granted by a member state to an eligible physician through the process set forth in the compact.
  5. “Interstate commission” means the interstate commission created pursuant to article XI.
  6. “License” means authorization by a state for a physician to engage in the practice of medicine, which would be unlawful without the authorization.
  7. “Medical practice act” means laws and regulations governing the practice of allopathic and osteopathic medicine within a member state.
  8. “Member board” means a state agency in a member state which acts in the sovereign interests of the state by protecting the public through licensure, regulation, and education of physicians as directed by the state government.
  9. “Member state” means a state that has enacted the compact.
  10. “Offense” means a felony, gross misdemeanor, or crime of moral turpitude.
  11. “Physician” means any individual who:
    1. Is a graduate of a medical school accredited by the liaison committee on medical education, the commission on osteopathic college accreditation, or a medical school listed in the international medical education directory or its equivalent;
    2. Passed each component of the United States medical licensing examination (USMLE) or the comprehensive osteopathic medical licensing examination (COMLEX-USA) within three attempts, or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
    3. Successfully completed graduate medical education approved by the accreditation council for graduate medical education or the American osteopathic association;
    4. Holds specialty certification or a time-unlimited specialty certificate recognized by the American board of medical specialties or the American osteopathic association’s bureau of osteopathic specialists;
    5. Possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
    6. Has never been convicted or received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;
    7. Has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license;
    8. Has never had a controlled substance license or permit suspended or revoked by a state or the United States drug enforcement administration; and
    9. Is not under active investigation by a licensing agency or law enforcement authority in any state, federal, or foreign jurisdiction.
  12. “Practice of medicine” means the clinical prevention, diagnosis, or treatment of human disease, injury, or condition requiring a physician to obtain and maintain a license in compliance with the medical practice act of a member state.
  13. “Rule” means a written statement by the interstate commission promulgated pursuant to article XII of the compact, that is of general applicability, implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the interstate commission, and has the force and effect of statutory law in a member state, and includes the amendment, repeal, or suspension of an existing rule.
  14. “State” means any state, commonwealth, district, or territory of the United States.
  15. “State of principal license” means a member state where a physician holds a license to practice medicine and which has been designated as such by the physician for purposes of registration and participation in the compact.
    1. The state of primary residence for the physician;
    2. The state where at least twenty-five percent of the practice of medicine occurs;
    3. The location of the physician’s employer; or
    4. If no state qualifies under subdivisions a, b, or c, the state designated as state of residence for purpose of federal income tax.
    5. Discuss information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Discuss investigative records compiled for law enforcement purposes; or
    7. Specifically relate to the participation in a civil action or other legal proceeding.
  16. Adopt a seal and bylaws governing the management and operation of the interstate commission;
  17. Report annually to the legislatures and governors of the member states concerning the activities of the interstate commission during the preceding year. Such reports must also include reports of financial audits and any recommendations that may have been adopted by the interstate commission;
  18. Coordinate education, training, and public awareness regarding the compact, its implementation, and its operation;
  19. Maintain records in accordance with the bylaws;
  20. Seek and obtain trademarks, copyrights, and patents; and
  21. Perform such functions as may be necessary or appropriate to achieve the purposes of the compact.
    1. The liability of the executive director and employees of the interstate commission or representatives of the interstate commission, acting within the scope of such individual’s employment or duties for acts, errors, or omissions occurring within such individual’s state, may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. The interstate commission is considered to be an instrumentality of the states for the purposes of any such action. This subsection may not be construed to protect such individual from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such individual.
    2. The interstate commission shall defend the executive director, its employees, and subject to the approval of the attorney general or other appropriate legal counsel of the member state represented by an interstate commission representative, shall defend such interstate commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such individual.
    3. To the extent not covered by the state involved, member state, or the interstate commission, the representatives, or employees of the interstate commission must be held harmless in the amount of a settlement or judgment, including attorney’s fees and costs, obtained against such individuals arising out of an actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such individuals had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such individuals.

ARTICLE III — ELIGIBILITY

1. A physician must meet the eligibility requirements as defined in subsection 11 of article II to receive an expedited license under the terms and provisions of the compact.

2. A physician who does not meet the requirements of subsection 11 of article II may obtain a license to practice medicine in a member state if the individual complies with all laws and requirements, other than the compact, relating to the issuance of a license to practice medicine in that state.

ARTICLE IV — DESIGNATION OF STATE OF PRINCIPAL LICENSE

1. A physician shall designate a member state as the state of principal license for purposes of registration for expedited licensure through the compact if the physician possesses a full and unrestricted license to practice medicine in that state, and the state is:

2. A physician may redesignate a member state as state of principal license at any time, as long as the state meets the requirements in subsection 1.

3. The interstate commission may develop rules to facilitate redesignation of another member state as the state of principal license.

ARTICLE V — APPLICATION AND ISSUANCE OF EXPEDITED LICENSURE

1. A physician seeking licensure through the compact shall file an application for an expedited license with the member board of the state selected by the physician as the state of principal license.

2. Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician’s eligibility, to the interstate commission.

a. Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the interstate commission through rule, may not be subject to additional primary source verification if already primary source verified by the state of principal license.

b. The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the federal bureau of investigation, with the exception of federal employees who have suitability determination in accordance with title 5, Code of Federal Regulations, section 731.202.

c. Appeal on the determination of eligibility must be made to the member state where the application was filed and must be subject to the law of that state.

3. Upon verification in subsection 2, physicians eligible for an expedited license shall complete the registration process established by the interstate commission to receive a license in a member state selected pursuant to subsection 1, including the payment of any applicable fees.

4. After receiving verification of eligibility under subsection 2 and any fees under subsection 3, a member board shall issue an expedited license to the physician. This license must authorize the physician to practice medicine in the issuing state consistent with the medical practice act and all applicable laws and regulations of the issuing member board and member state.

5. An expedited license must be valid for a period consistent with the licensure period in the member state and in the same manner as required for other physicians holding a full and unrestricted license within the member state.

6. An expedited license obtained though the compact must be terminated if a physician fails to maintain a license in the state of principal licensure for a nondisciplinary reason, without redesignation of a new state of principal licensure.

7. The interstate commission may develop rules regarding the application process, including payment of any applicable fees, and the issuance of an expedited license.

ARTICLE VI — FEES FOR EXPEDITED LICENSURE

1. A member state issuing an expedited license authorizing the practice of medicine in that state may impose a fee for a license issued or renewed through the compact.

2. The interstate commission may develop rules regarding fees for expedited licenses.

ARTICLE VII — RENEWAL AND CONTINUED PARTICIPATION

1. A physician seeking to renew an expedited license granted in a member state shall complete a renewal process with the interstate commission if the physician:

a. Maintains a full and unrestricted license in a state of principal license;

b. Has not been convicted or received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;

c. Has not had a license authorizing the practice of medicine subject to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license; and

d. Has not had a controlled substance license or permit suspended or revoked by a state or the United States drug enforcement administration.

2. Physicians shall comply with all continuing professional development or continuing medical education requirements for renewal of a license issued by a member state.

3. The interstate commission shall collect any renewal fees charged for the renewal of a license and distribute the fees to the applicable member board.

4. Upon receipt of any renewal fees collected in subsection 3, a member board shall renew the physician’s license.

5. Physician information collected by the interstate commission during the renewal process must be distributed to all member boards.

6. The interstate commission may develop rules to address renewal of licenses obtained through the compact.

ARTICLE VIII — COORDINATED INFORMATION SYSTEM

1. The interstate commission shall establish a database of all physicians licensed, or who have applied for licensure, under article V.

2. Notwithstanding any other provision of law, member boards shall report to the interstate commission any public action or complaints against a licensed physician who has applied or received an expedited license through the compact.

3. Member boards shall report disciplinary or investigatory information determined as necessary and proper by rule of the interstate commission.

4. Member boards may report any nonpublic complaint, disciplinary, or investigatory information not required by subsection 3 to the interstate commission.

5. Member boards shall share complaint or disciplinary information about a physician upon request of another member board.

6. All information provided to the interstate commission or distributed by member boards must be confidential, filed under seal, and used only for investigatory or disciplinary matters.

7. The interstate commission may develop rules for mandated or discretionary sharing of information by member boards.

ARTICLE IX — JOINT INVESTIGATIONS

1. Licensure and disciplinary records of physicians are deemed investigative.

2. In addition to the authority granted to a member board by its respective medical practice act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.

3. A subpoena issued by a member state must be enforceable in other member states.

4. Member boards may share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

5. Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.

ARTICLE X — DISCIPLINARY ACTIONS

1. Any disciplinary action taken by any member board against a physician licensed through the compact must be deemed unprofessional conduct, which may be subject to discipline by other member boards, in addition to any violation of the medical practice act or regulations in that state.

2. If a license granted to a physician by the member board in the state of principal license is revoked, surrendered, or relinquished in lieu of discipline or suspended, all licenses issued to the physician by member boards must automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician’s license, a license issued to the physician by any other member board must remain encumbered until that respective member board takes action to reinstate the license in a manner consistent with the medical practice act of that state.

3. If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:

a. Impose the same or lesser sanction against the physician so long as such sanctions are consistent with the medical practice act of that state; or

b. Pursue separate disciplinary action against the physician under its respective medical practice act, regardless of the action taken in other member states.

4. If a license granted to a physician by a member board is revoked, surrendered, or relinquished in lieu of discipline, or suspended, any license issued to the physician by any other member board must be suspended, automatically and immediately without further action necessary by the other member board, for ninety days upon entry of the order by the disciplining board, to permit the member board to investigate the basis for the action under the medical practice act of that state. A member board may terminate the automatic suspension of the license it issued before the completion of the ninety-day suspension period in a manner consistent with the medical practice act of that state.

ARTICLE XI — INTERSTATE MEDICAL LICENSURE COMPACT COMMISSION

1. The member states hereby create the interstate medical licensure compact commission.

2. The purpose of the interstate commission is the administration of the interstate medical licensure compact, which is a discretionary state function.

3. The interstate commission must be a body corporate and joint agency of the member states and must have all the responsibilities, powers, and duties set forth in the compact, and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective legislatures of the member states in accordance with the terms of the compact.

4. The interstate commission must consist of two voting representatives appointed by each member state who shall serve as commissioners. In states where allopathic and osteopathic physicians are regulated by separate member boards, or if the licensing and disciplinary authority is split between multiple member boards within a member state, the member state shall appoint one representative from each member board. A commissioner must be:

a. An allopathic or osteopathic physician appointed to a member board;

b. An executive director, executive secretary, or similar executive of a member board; or

c. A member of the public appointed to a member board.

5. The interstate commission shall meet at least once each calendar year. A portion of this meeting must be a business meeting to address such matters as may properly come before the commission, including the election of officers. The chairperson may call additional meetings and shall call for a meeting upon the request of a majority of the member states.

6. The bylaws may provide for meetings of the interstate commission to be conducted by telecommunication or electronic communication.

7. Each commissioner participating at a meeting of the interstate commission is entitled to one vote. A majority of commissioners constitutes a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission. A commissioner may not delegate a vote to another commissioner. In the absence of its commissioner, a member state may delegate voting authority for a specified meeting to another individual from that state who must meet the requirements of subsection 4.

8. The interstate commission shall provide public notice of all meetings and all meetings must be open to the public. The interstate commission may close a meeting, in full or in portion, if it determines by a two-thirds vote of the commissioners present that an open meeting would be likely to:

a. Relate solely to the internal personnel practices and procedures of the interstate commission;

b. Discuss matters specifically exempted from disclosure by federal statute;

c. Discuss trade secrets, commercial, or financial information that is privileged or confidential;

d. Involve accusing a person of a crime, or formally censuring a person;

9. The interstate commission shall keep minutes that fully describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, including record of any roll call votes.

10. The interstate commission shall make its information and official records, to the extent not otherwise designated in the compact or by its rules, available to the public for inspection.

11. The interstate commission shall establish an executive committee, which must include officers, members, and others as determined by the bylaws. The executive committee must have the power to act on behalf of the interstate commission, with the exception of rulemaking, during periods when the interstate commission is not in session. If acting on behalf of the interstate commission, the executive committee shall oversee the administration of the compact, including enforcement and compliance with the provisions of the compact, its bylaws and rules, and other such duties as necessary.

12. The interstate commission may establish other committees for governance and administration of the compact.

ARTICLE XII — POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The interstate commission has the duty and power to:

1. Oversee and maintain the administration of the compact;

2. Promulgate rules that must be binding to the extent and in the manner provided for in the compact;

3. Issue, upon the request of a member state or member board, advisory opinions concerning the meaning or interpretation of the compact, its bylaws, rules, and actions;

4. Enforce compliance with compact provisions, the rules promulgated by the interstate commission, and the bylaws, using all necessary and proper means, including the use of judicial process;

5. Establish and appoint committees including, an executive committee as required by article XI which may act on behalf of the interstate commission in carrying out its powers and duties;

6. Pay, or provide for the payment of the expenses related to the establishment, organization, and ongoing activities of the interstate commission;

7. Establish and maintain one or more offices;

8. Borrow, accept, hire, or contract for services of personnel;

9. Purchase and maintain insurance and bonds;

10. Employ an executive director who must have such powers to employ, select, or appoint employees, agents, or consultants, and to determine their qualifications, define their duties, and fix their compensation;

11. Establish personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel;

12. Accept donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it in a manner consistent with the conflict of interest policies established by the interstate commission;

13. Lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use, any property, real, personal, or mixed;

14. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;

15. Establish a budget and make expenditures;

ARTICLE XIII — FINANCE POWERS

1. The interstate commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the interstate commission and its staff. The total assessment must be sufficient to cover the annual budget approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount must be allocated upon a formula to be determined by the interstate commission, which shall promulgate a rule binding upon all member states.

2. The interstate commission may not incur obligations of any kind before securing the funds adequate to meet the same.

3. The interstate commission may not pledge the credit of any of the member states, except by, and with the authority of, the member state.

4. The interstate commission must be subject to a yearly financial audit conducted by a certified or licensed public accountant and the report of the audit must be included in the annual report of the interstate commission.

ARTICLE XIV — ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

1. The interstate commission shall, by a majority of commissioners present and voting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact within twelve months of the first interstate commission meeting.

2. The interstate commission shall elect or appoint annually from among its commissioners a chairperson, a vice chairperson, and a treasurer, each of whom must have such authority and duties as may be specified in the bylaws. The chairperson, or in the chairperson’s absence or disability, the vice chairperson, shall preside at all meetings of the interstate commission.

3. Officers selected in subsection shall serve without remuneration from the interstate commission.

4. The officers and employees of the interstate commission must be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of, or relating to, an actual or alleged act, error, or omission that occurred, or that such individual had a reasonable basis for believing occurred, within the scope of interstate commission employment, duties, or responsibilities; provided that such individual may not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such individual.

ARTICLE XV — RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

1. The interstate commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of the compact. Notwithstanding the foregoing, if the interstate commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of the compact, or the powers granted under the compact, such an action by the interstate commission must be invalid and have no force or effect.

2. Rules deemed appropriate for the operations of the interstate commission must be made pursuant to a rulemaking process that substantially conforms to the model state administrative procedure act of 2010, and subsequent amendments thereto.

3. Not later than thirty days after a rule is promulgated, any person may file a petition for judicial review of the rule in the United States district court for the District of Columbia or the federal district where the interstate commission has its principal offices, provided that the filing of such a petition may not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the interstate commission consistent with applicable law and may not find the rule to be unlawful if the rule represents a reasonable exercise of the authority granted to the interstate commission.

ARTICLE XVI — OVERSIGHT OF INTERSTATE COMPACT

1. The executive, legislative, and judicial branches of state government in each member state shall enforce the compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The provisions of the compact and the rules promulgated under the compact must have standing as statutory law but may not override existing state authority to regulate the practice of medicine.

2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of the compact which may affect the powers, responsibilities, or actions of the interstate commission.

3. The interstate commission must be entitled to receive all service of process in any such proceeding, and must have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the interstate commission renders a judgment or order void as to the interstate commission, the compact, or promulgated rules.

ARTICLE XVII — ENFORCEMENT OF INTERSTATE COMPACT

1. The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of the compact.

2. The interstate commission may, by majority vote of the commissioners, initiate legal action in the United States district court for the District of Columbia, or, at the discretion of the interstate commission, in the federal district where the interstate commission has its principal offices, to enforce compliance with the provisions of the compact, and its promulgated rules and bylaws, against a member state in default. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation including reasonable attorney’s fees.

3. The remedies in this chapter may not be the exclusive remedies of the interstate commission. The interstate commission may avail itself of any other remedies available under state law or the regulation of a profession.

ARTICLE XVIII — DEFAULT PROCEDURES

1. The grounds for default, include failure of a member state to perform such obligations or responsibilities imposed upon it by the compact or the rules and bylaws of the interstate commission promulgated under the compact.

2. If the interstate commission determines a member state has defaulted in the performance of its obligations or responsibilities under the compact, or the bylaws or promulgated rules, the interstate commission shall:

a. Provide written notice to the defaulting state and other member states, of the nature of the default, the means of curing the default, and any action taken by the interstate commission. The interstate commission shall specify the conditions by which the defaulting state must cure its default; and

b. Provide remedial training and specific technical assistance regarding the default.

3. If the defaulting state fails to cure the default, the defaulting state must be terminated from the compact upon an affirmative vote of a majority of the commissioners and all rights, privileges, and benefits conferred by the compact must terminate on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.

4. Termination of membership in the compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to terminate must be given by the interstate commission to the governor, the majority and minority leaders of the defaulting state’s legislature, and each of the member states.

5. The interstate commission shall establish rules and procedures to address licenses and physicians that are materially impacted by the termination of a member state or the withdrawal of a member state.

6. The member state that has been terminated is responsible for all dues, obligations, and liabilities incurred through the effective date of termination, including obligations the performance of which extends beyond the effective date of termination.

7. The interstate commission may not bear any costs relating to any state that has been found to be in default or which has been terminated from the compact, unless otherwise mutually agreed upon in writing between the interstate commission and the defaulting state.

8. The defaulting state may appeal the action of the interstate commission by petitioning the United States district court for the District of Columbia or the federal district where the interstate commission has its principal offices. The prevailing party must be awarded all costs of such litigation including reasonable attorney’s fees.

ARTICLE XIX — DISPUTE RESOLUTION

1. The interstate commission shall attempt, upon the request of a member state, to resolve disputes that are subject to the compact and which may arise among member states or member boards.

2. The interstate commission shall promulgate rules providing for both mediation and binding dispute resolution as appropriate.

ARTICLE XX — MEMBER STATES, EFFECTIVE DATE, AND AMENDMENT

1. Any state is eligible to become a member state of the compact.

2. The compact must become effective and binding upon legislative enactment of the compact into law by no less than seven states. Thereafter, the compact must become effective and binding on a state upon enactment of the compact into law by that state.

3. The governors of nonmember states, or their designees, must be invited to participate in the activities of the interstate commission on a nonvoting basis before adoption of the compact by all states.

4. The interstate commission may propose amendments to the compact for enactment by the member states. An amendment may not become effective and binding upon the interstate commission and the member states unless and until it is enacted into law by unanimous consent of the member states.

ARTICLE XXI — WITHDRAWAL

1. Once effective, the compact must continue in force and remain binding upon each and every member state, provided that a member state may withdraw from the compact by specifically repealing the statute that enacted the compact into law.

2. Withdrawal from the compact must be by the enactment of a statute repealing the same, but may not take effect until one year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other member state.

3. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing the compact in the withdrawing state.

4. The interstate commission shall notify the other member states of the withdrawing state’s intent to withdraw within sixty days of its receipt of notice provided under subsection 3.

5. The withdrawing state is responsible for all dues, obligations, and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.

6. Reinstatement following withdrawal of a member state must occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.

7. The interstate commission may develop rules to address the impact of the withdrawal of a member state on licenses granted in other member states to physicians who designated the withdrawing member state as the state of principal license.

ARTICLE XXII — DISSOLUTION

1. The compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the compact to one member state.

2. Upon the dissolution of the compact, the compact becomes null and void and must be of no further force or effect, and the business and affairs of the interstate commission must be concluded and surplus funds must be distributed in accordance with the bylaws.

ARTICLE XXIII — SEVERABILITY AND CONSTRUCTION

1. The provisions of the compact must be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact must be enforceable.

2. The provisions of the compact must be liberally construed to effectuate its purposes.

3. The compact may not be construed to prohibit the applicability of other interstate compacts to which the states are members.

ARTICLE XXIV — BINDING EFFECT OF COMPACT AND OTHER LAWS

1. This chapter does not prevent the enforcement of any other law of a member state that is not inconsistent with the compact.

2. All laws in a member state in conflict with the compact are superseded to the extent of the conflict.

3. All lawful actions of the interstate commission, including all rules and bylaws promulgated by the commission, are binding upon the member states.

4. All agreements between the interstate commission and the member states are binding in accordance with their terms.

5. If any provision of the compact exceeds the constitutional limits imposed on the legislature of any member state, such provision must be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Source:

S.L. 2019, ch. 357, § 2, effective August 1, 2019.

CHAPTER 43-18 Plumbers

43-18-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the state board of plumbing.
  2. “Journeyman plumber” means any person, other than a master plumber, who, as the person’s principal occupation, is engaged in the practical installation, alteration, and repair of plumbing.
  3. “Master plumber” means a person skilled in the planning, supervision, and the practical installation, alteration, and repair of plumbing, and familiar with the laws, rules, and regulations governing the same.
  4. “Plumber’s apprentice” means any person other than a journeyman or a master plumber, who, as the person’s principal occupation, is engaged in learning and assisting in the installation, alteration, and repair of plumbing and drainage, under the immediate and personal supervision of either a master or a journeyman plumber.
  5. “Plumbing” means the installation, maintenance, extension, alteration, and removal of all piping, plumbing fixtures, plumbing appliances, and other appurtenances in connection with bringing water into, and using the same in buildings, and for removing liquids and water-carried wastes therefrom.

Source:

S.L. 1941, ch. 187, § 1; R.C. 1943, § 43-1801; S.L. 1975, ch. 407, § 1; 1989, ch. 526, § 1.

Cross-References.

Municipal regulation of plumbers and plumbing business, see N.D.C.C. § 40-05-01, subsec. 25.

Notes to Decisions

Installation of Water Softeners.

Installation and servicing of water softeners by persons not holding plumbing licenses was in violation of this chapter and corresponding city ordinance; such work is included in the definition of “plumbing”. Bob Rosen Water Conditioning Co. v. City of Bismarck, 181 N.W.2d 722 (N.D. 1970). Also see subsequently enacted ch. 43-18.1, infra.

43-18-02. State board of plumbing — Members — Appointment — Qualifications.

The state board of plumbing shall consist of the chief sanitary engineer, or the director of the department of environmental quality, and four persons appointed by the governor. All of the appointed members must have been residents of this state for at least five years immediately preceding their appointment, and one of them must be a master plumber with at least five years of experience in North Dakota, one must be a journeyman plumber with at least five years of experience in North Dakota, one must be a registered professional engineer practicing mechanical engineering in North Dakota, and one must be a representative of the consuming public.

Source:

S.L. 1941, ch. 187, § 2; R.C. 1943, § 43-1802; S.L. 1975, ch. 407, § 2; 1995, ch. 243, § 2; 2017, ch. 199, § 42, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

43-18-03. State board of plumbing — Members — Terms of office — Vacancies — How filled.

Each appointed member of the board shall qualify by taking the oath of office required of civil officers and shall hold office for a term of four years and until a successor is appointed and qualified. The terms of office of the appointed members must be so arranged that one term only expires on the thirtieth day of June of each year. The four members appointed by the governor to the first board must be appointed within thirty days after July 1, 1975, to serve for the following terms: one master plumber for one year, one journeyman plumber for two years, one mechanical engineer for three years, and a representative of the consuming public for four years. A vacancy on the board caused by the death, resignation, or expiration of the term of any appointed member must be filled for the unexpired term by appointment by the governor from the class of members to which the deceased or retiring member belonged.

Source:

S.L. 1941, ch. 187, § 2; R.C. 1943, § 43-1803; S.L. 1975, ch. 407, § 3.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-18-04. Office and officers of board.

The members of the board shall elect from their number a president, a vice president, and a treasurer, and they shall select a secretary, but the office of secretary and treasurer may be held by the same person. The secretary or secretary-treasurer need not be a member of the board.

Source:

S.L. 1941, ch. 187, §§ 3, 5; R.C. 1943, § 43-1804; S.L. 1975, ch. 407, § 4; 2021, ch. 315, § 1, effective August 1, 2021.

43-18-05. Members of board and employees — Compensation.

Each appointed member of the board is entitled to receive compensation in an amount determined by the board, not to exceed one hundred dollars per day, for actual services rendered in the performance of the member’s duties under this chapter, and each member and employee of the board is entitled to receive traveling expenses incurred in the performance of official duties. Allowances for traveling expenses must be as provided by law for state officials and employees. The compensation and expense must be paid out of the state plumbing board fund. The compensation provided for in this section may not be paid to any member of the board who receives salary or other compensation as a regular employee of the state or any of its political subdivisions or any institution or industry operated by the state.

Source:

S.L. 1941, ch. 187, § 4; R.C. 1943, § 43-1805; S.L. 1975, ch. 407, § 5; 2007, ch. 369, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-18-06. Board may hire and fix compensation of employees — Incur necessary expenses.

The board may employ an executive director; inspectors, who must be registered plumbers; and such administrative staff, as may be necessary. The board shall fix the compensation of such employees, and may incur such other expenses as may be required. All such salaries and expenses must be paid only out of such moneys as may be in the state plumbing board fund. The executive director may serve as the secretary or secretary-treasurer of the board.

Source:

S.L. 1941, ch. 187, § 5; R.C. 1943, § 43-1806; 2021, ch. 315, § 2, effective August 1, 2021.

43-18-07. Fees — Where deposited — Use. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-18-08. Duties of board.

The board shall:

  1. Enforce the provisions of this chapter.
  2. Prescribe rules and regulations not inconsistent with the provisions of this chapter for the examination, regulation, and licensing of plumbers, either as master plumbers, journeyman plumbers, plumber’s apprentices, or any of such classifications.
  3. Adopt rules that set fees for licensure which may include a fee for:
    1. An examination, within the limits established by this chapter.
    2. An application, not to exceed one hundred dollars.
    3. A renewal, within the limits established by this chapter.
    4. A late renewal, not to exceed one hundred dollars.

Source:

S.L. 1941, ch. 187, §§ 2, 6, 11; R.C. 1943, § 43-1808; S.L. 1975, ch. 407, § 6; 1993, ch. 430, § 1; 2021, ch. 315, § 3, effective August 1, 2021.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

43-18-09. Board to adopt plumbing code — Provisions have force of law.

The board shall formulate, prepare, and circulate among all plumbers within this state a state plumbing code, which must contain the minimum basic standards for plumbing, drainage, and ventilation of plumbing in buildings of all classes. Such code must be approved by the department of environmental quality. The provisions of said code have the force and effect of law and any violation thereof constitutes a violation of this chapter.

Source:

S.L. 1941, ch. 187, § 7; R.C. 1943, § 43-1809; S.L. 1995, ch. 243, § 2; 2017, ch. 199, § 43, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Cross-References.

Municipal standards may be higher but not lower, see N.D.C.C. § 40-05-01, subsec. 25.

Violation of state plumbing code, criminal penalty, see N.D.C.C. § 43-18-24.

43-18-10. Firm engaged in installing plumbing to employ master plumber — Exceptions.

No person, firm, corporation, or limited liability company shall engage in the business of installing plumbing and shall not install plumbing in connection with the dealing in and selling of plumbing materials and supplies in any location of this state having a public system of waterworks or sewerage, unless at all times a registered and licensed master plumber, who is responsible for the proper installation thereof, is in charge of such work. In cities of less than one thousand population and in all rural areas, a licensed journeyman plumber may engage in the business of installing plumbing.

Source:

S.L. 1941, ch. 187, § 10; R.C. 1943, § 43-1810; S.L. 1975, ch. 407, § 7; 1993, ch. 54, § 106; 1993; ch. 430, § 2.

43-18-11. License required — Exception for homeowner and full-time employee.

No person, firm, corporation, or limited liability company shall engage in the business of a master plumber, journeyman plumber, or plumber’s apprentice in any location of this state having a public system of waterworks or sewerage unless registered and licensed to do so by the board. Anyone not so licensed may do plumbing work which complies with the provisions of the minimum standards prescribed by the board on premises or that part of premises owned and actually occupied by the person as a residence, or may do plumbing repair on premises where the person is employed in full-time maintenance work, unless otherwise forbidden to do so by a local ordinance. Public water system employees may install and maintain service lines and water meters on premises served by the water system.

Source:

S.L. 1941, ch. 187, § 10; R.C. 1943, § 43-1811; S.L. 1975, ch. 407, § 8; 1993, ch. 54, § 106; 1993, ch. 430, § 3.

Cross-References.

Unlawful to work as plumber without license, see N.D.C.C. § 43-18-23.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

43-18-11.1. When license not required.

Employees of dealers in household appliances need not be licensed pursuant to this chapter when installing household appliances, if any necessary plumbing work is incidental to the installation of the appliance and the work could be performed by a plumber’s apprentice.

Source:

S.L. 1975, ch. 399, § 2.

43-18-11.2. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a plumber, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 31.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-18-11.3. Advertising prohibited — Exceptions — Penalty.

  1. Except as provided in this section, if a plumbing license is required under section 43-18-11 or by local ordinance, no person offering plumbing contracting services may advertise as a plumbing contractor, master plumber, or journeyman plumber unless the person employs a licensed journeyman plumber, or the person is a licensed master plumber. Any advertisement must contain the appropriate license number. This section does not apply to advertising purchased or contracted for prior to July 1, 1989.
    1. A person violating this section is guilty of a class B misdemeanor for a first conviction, but no fine in excess of one hundred dollars and no term of imprisonment may be imposed.
    2. A person violating this section is guilty of a class A misdemeanor for a second or subsequent conviction, but the penalties are as follows:
      1. For a second conviction, no fine in excess of one thousand dollars and no term of imprisonment may be imposed.
      2. For a third or subsequent conviction, a fine not to exceed one thousand dollars or imprisonment not to exceed thirty days, or both, may be imposed.

Source:

S.L. 1989, ch. 527, § 1.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-18-11.4. Plumbing inspectors — License required — Exception.

A person employed by the state board of plumbing or a political subdivision to inspect plumbing installations must be licensed as a journeyman or master plumber. This section does not apply to an inspector employed by the board of plumbing or a political subdivision as of July 2, 1989.

Source:

S.L. 1989, ch. 511, § 2.

43-18-12. Examination — When held — Notice.

Examinations must be held at the time and place prescribed by the board. Notice of such examinations must be given by mail to all persons who have made application to take the examination. The board may call a special examination at any time.

Source:

S.L. 1941, ch. 187, § 12; R.C. 1943, § 43-1812; S.L. 1989, ch. 526, § 2.

43-18-13. License — How obtained — Fee.

Any person qualified under the rules of the board who desires to take the examination to become a registered and licensed plumber shall make application to the board therefor and pay to the treasurer of the board the examination fee. Such fee may not exceed two hundred dollars for a master plumber’s certificate and license and one hundred dollars for a journeyman plumber’s certificate and license. The board, when the condition of its fund permits and when in its judgment it is deemed advisable, may reduce the amount of the examination fees, but it may not increase the same above the amount specified in this section. Any such change must be adopted by the board to take effect on the first day of January following its action and must apply to all examination fees in the classes specified in the ruling. The applicant shall appear at the next regular meeting of the board for examination of applicants. If upon examination the applicant is found by the board to be qualified as a master plumber or journeyman plumber, or both, it shall issue to the applicant a certificate of registration and license which entitles the applicant to do the work and be a plumber as specified in the license. A master plumber’s and journeyman plumber’s license may be issued to one and the same person, and the holder of a master plumber’s license may be granted a journeyman plumber’s license without the payment of the journeyman’s fee. All certificates and licenses must be numbered consecutively and may not be transferable, and no person may work under the license issued to another person. Should a person fail upon examination to qualify as a master or journeyman plumber, such person has the right to review the examination to determine the reasons for failure and has the right to appeal to the board.

Source:

S.L. 1941, ch. 187, § 13; R.C. 1943, § 43-1813; S.L. 1963, ch. 312, § 1; 1975, ch. 407, § 9; 1975, ch. 408, § 1; 1987, ch. 527, § 1.

Cross-References.

Water conditioning contractors and installers, application of section to licensing and registration of, see N.D.C.C. § 43-18.1-04, subsec. 3.

43-18-13.1. Reciprocity with other states.

The board may register, without examination, upon payment of the required fee, nonresident applicants registered under the laws of other states having requirements for regulating plumbers which the board determines are substantially equivalent to the requirements of this state in those instances when such other state grants similar privileges to North Dakota residents licensed under this chapter.

Source:

S.L. 1975, ch. 407, § 17.

43-18-14. Board to keep register of licenses issued.

The board shall keep a register in which must be entered the names and addresses of all persons to whom certificates of registration and license are issued under the provisions of this chapter as master plumbers, and also a register in which must be entered the names and addresses of all persons to whom certificates of registration and license are issued under the provisions of this chapter as journeyman plumbers. Such register must be open to the public for inspection.

Source:

S.L. 1941, ch. 187, § 14; R.C. 1943, § 43-1814.

43-18-15. Temporary license — When issued.

The board, upon the payment of the regular examination fee, may issue a temporary permit to engage in the business of master plumber or journeyman plumber, or both, to any person who furnishes satisfactory evidence of the person’s qualifications. Such permits are revocable permits and are effective to December thirty-first of the year in which they are issued. No person may be issued such temporary permits for longer than four years.

Source:

S.L. 1941, ch. 187, § 15; 1943, ch. 164, § 1; R.C. 1943, § 43-1815; S.L. 1975, ch. 407, § 10.

43-18-16. Plumber licensed by board may practice at any place in state — Exception.

A plumber registered and licensed by the board to engage in the business of master plumber, journeyman plumber, or plumber’s apprentice may engage in or work at the business of plumbing at any place in this state, except in cities that have adopted ordinances requiring a municipal license or registration in addition to the state license before permitting any plumber to work in such municipality.

Source:

S.L. 1941, ch. 187, § 8; R.C. 1943, § 43-1816; S.L. 1975, ch. 407, § 11.

Cross-References.

Municipal regulation of plumbers and plumbing business, see N.D.C.C. § 40-05-01, subsec. 25.

43-18-17. Renewal of license — Fee.

A certificate and license issued under the provisions of this chapter is valid for only one year and expires on the thirty-first day of December of the year in which it was issued. The certificate must be renewed by the board upon application made within thirty days after the expiration thereof and on the payment of a sum not to exceed two hundred dollars for a master plumber’s certificate and license, and the sum of one hundred dollars for a journeyman plumber’s certificate and license. The board, when the condition of its fund permits and when in its judgment it is deemed advisable, may reduce the amount of the renewal fees, but it may not increase the same above the amount specified in this section. Any such change must be adopted by the board to take effect on the first day of January following its action and applies to all renewals in the classes specified in the ruling.

Source:

S.L. 1941, ch. 187, § 13; R.C. 1943, § 43-1817; S.L. 1963, ch. 312, § 2; 1975, ch. 407, § 12; 1987, ch. 527, § 2.

43-18-17.1. Continuing education.

After January 1, 1991, each applicant for renewal of a master or journeyman plumber’s license under section 43-18-17 must have successfully completed prior thereto at least two credit hours, and thereafter a minimum of two credit hours and not to exceed four credit hours within a two-year period, of continuing education relating to the plumbing trade.

Credit hours for educational sessions must be determined by the board on a continuing basis to evaluate new sessions as they become available for fulfilling the educational requirements of this section. The board may charge a fee sufficient to offset expenses incurred for any educational sessions for which it is directly responsible.

Source:

S.L. 1989, ch. 526, § 5.

43-18-17.2. Report of work — Exception.

A person shall report doing plumbing work subject to inspection under section 43-18-17.3 to the board upon forms furnished by the board. This section does not apply to plumbing installations in buildings that are not connected to a public system of waterworks or sewerage or in political subdivisions where inspection is required by local ordinance.

Source:

S.L. 1993, ch. 430, § 4.

43-18-17.3. Inspection of installation — Exception.

The board has jurisdiction over and shall make provision for inspection of plumbing installations or alterations to public buildings and installations in newly constructed dwelling units, except as provided in this section. Political subdivisions may provide for inspection of plumbing work done within their jurisdictional limits. The board may charge the person responsible for the installation a reasonable fee not to exceed the cost of inspection. No inspection is required for any repair work or plumbing fixture replacement which requires only minor alteration, or to buildings that are not connected to a public system of waterworks or sewerage, and does not apply to maintenance work conducted by regularly employed maintenance personnel on the business premises of their employer.

Source:

S.L. 1993, ch. 430, § 5.

43-18-18. Grounds for revocation of license.

The board may revoke any certificate issued under the provisions of this chapter if the holder is guilty of:

  1. Commission of an offense determined by the board to have a direct bearing upon the holder’s ability to serve the public as a plumber, or the board determines, following conviction of any offense, that the holder is not sufficiently rehabilitated under section 12.1-33-02.1;
  2. Error or fraud in obtaining the holder’s certificate;
  3. Permitting the use of the holder’s certificate and license in violation of this chapter;
  4. Incompetency;
  5. Failure to furnish certification of completion of continuing education as required under section 43-18-17.1; or
  6. Failure to report work as required under section 43-18-17.2.

Source:

S.L. 1941, ch. 187, § 17; R.C. 1943, § 43-1818; S.L. 1977, ch. 130, § 32; 1989, ch. 526, § 3; 1993, ch. 430, § 6.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-18-19. Revocation — Hearing.

A certificate of registration and license issued under the provisions of this chapter may be revoked only after a hearing of the charges by the board. The holder of the certificate must be notified in writing by the board of the charges against the holder and of the time and place fixed for the hearing. Such notice must be served by registered or certified mail, addressed to the post-office address of the certificate holder as shown in the holder’s certificate of registration and license. The time set for the hearing must be not less than ten days after the service of the notice. The hearing must be public and full opportunity must be given the accused to produce witnesses and evidence in the accused’s own behalf and to examine the witnesses against the accused. After hearing all the evidence, the board shall render its decision in writing and the accused must be furnished, by mail, a copy thereof. If the accused is found guilty of any offense for which revocation of the license is provided, the certificate of registration and license is revoked automatically.

Source:

S.L. 1941, ch. 187, § 17; R.C. 1943, § 43-1819.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Water conditioning contractors and installers, applicability of section to hearing for revocation of license of, see N.D.C.C. § 43-18.1-08.

43-18-20. Revocation of license — When reinstated.

A person whose certificate of registration and license issued under the provisions of this chapter has been revoked by the board may not be permitted to apply for a license for a period of one year from the date of the revocation. After the expiration of such time, the board may consider an application for reinstatement of such person and upon a showing that the disability has been removed or that there is no further likelihood that the offense will be repeated, the board may reinstate the license.

Source:

S.L. 1941, ch. 187, § 17; R.C. 1943, § 43-1820.

Cross-References.

Water conditioning contractors and installers, applicability of section to reinstatement of revoked license, see N.D.C.C. § 43-18.1-08.

43-18-21. Apprenticeship.

Every apprentice plumber shall, within thirty days after beginning apprenticeship, register with the state plumbing board on a registration application form which will be supplied by the board, showing date of beginning apprenticeship, age, schooling, previous experience, employer, and such other information as the board may require, except that a person who is working in a school-work program need not register. A registration certificate issued under the provisions of this section shall be valid for only one year and shall expire on the thirty-first day of December of the year in which it was issued. The certificate shall be renewed by the board upon application made within thirty days after the expiration thereof and on payment of the sum set by the board, but not to exceed twenty dollars for the first year, thirty dollars for the second year, forty dollars for the third year, and fifty dollars for the fourth year of apprenticeship. The fee after a four-year term of apprenticeship is the same as the fee for a journeyman plumber. This certificate of registration shall be the license required to be employed as a plumber’s apprentice in this state.

Source:

S.L. 1941, ch. 187, § 18; R.C. 1943, § 43-1821; S.L. 1975, ch. 407, § 13; 1989, ch. 526, § 4; 1993, ch. 430, § 7.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

43-18-22. Local authorities report violations to board.

Such local authority as may be designated by an ordinance of the municipality to issue plumbing permits and licenses, and to approve plumbing plans, shall report to the board willful violations of the state plumbing code and of any municipal ordinances regulating the same, and any incompetence on the part of any registered and licensed plumber that comes to the attention of the local authority.

Source:

S.L. 1941, ch. 187, § 9; R.C. 1943, § 43-1822.

Cross-References.

Municipal regulation of plumbers and plumbing business, see N.D.C.C. § 40-05-01, subsec. 25.

43-18-23. Working as plumber without license.

It is unlawful for any person to work, for compensation, as a master plumber, journeyman plumber, or plumber’s apprentice without being registered and licensed as a plumber in such classification.

Source:

S.L. 1941, ch. 187, § 20; R.C. 1943, § 43-1823; S.L. 1975, ch. 407, § 14.

Cross-References.

Appliance dealer’s employees, exception to licensing requirement, see N.D.C.C. § 43-18-11.1.

43-18-24. Violation of chapter — Penalty.

Any person that violates the state plumbing code adopted under section 43-18-09; violates section 43-18-10, 43-18-11, 43-18-11.4, 43-18-17.2, or 43-18-23; or works under the license of another person in a manner that is in violation of section 43-18-13 is guilty of a class B misdemeanor.

Source:

S.L. 1941, ch. 187, § 20; R.C. 1943, § 43-1824; S.L. 1975, ch. 106, § 488; 1975, ch. 407, § 15; 2007, ch. 19, § 7; 2007, ch. 369, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-18-25. Injunction.

In addition to the criminal penalty provided in section 43-18-24, the civil remedy of injunction is available to plumbing inspectors to restrain and enjoin violations of any provisions of this chapter. Any person claiming to be injured in person or property because of violations of this chapter may bring a civil action for damages.

Source:

S.L. 1975, ch. 407, § 16.

CHAPTER 43-18.1 Water Conditioning Contractors and Installers

43-18.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the state board of plumbing.
  2. “Water conditioning contractor” means a person who plans and manages the installation and repair of water conditioning equipment, and in conjunction therewith sells or leases such equipment.
  3. “Water conditioning installation and repair” means the installation of appliances, appurtenances, and fixtures designed to treat water so as to alter, modify, add or remove mineral, chemical, or bacterial content, and the repair of such equipment, to a water distribution system. “Water conditioning installation and repair” does not mean the exchange of such appliances, appurtenances, and fixtures when the plumbing system has previously been installed or adapted to or for such appliances, appurtenances, and fixtures, and no substantial change in such plumbing system is required.
  4. “Water conditioning installer” means any person who is engaged in the practical installation and repair of water conditioning equipment.

Source:

S.L. 1973, ch. 355, § 1.

43-18.1-02. Administration.

All fees and money obtained by the board through the administration of this chapter must be used for the regulation of the business of water conditioning installation and repair, through the board, and all such fees and money are appropriated to the board for such purpose. This appropriation is a continuing appropriation of all such sums. The handling and administration of such fees and money must otherwise be in accordance with section 54-44-12.

Source:

S.L. 1973, ch. 355, § 1.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

Liability of water supplier for damages resulting from furnishing impure water, 54 A.L.R.3d 936.

43-18.1-03. Duties of the board.

The board shall:

  1. Enforce the provisions of this chapter.
  2. Prescribe rules and regulations not inconsistent with the provisions of this chapter for the examination, regulation, and licensing of water conditioning contractors and water conditioning installers.

Source:

S.L. 1973, ch. 355, § 1.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-18.1-04. Licenses — Examination — Fees — Apprentices.

  1. No person, firm, corporation, or limited liability company, except plumbers holding valid licenses pursuant to chapter 43-18, shall engage in the business of water conditioning contractor or water conditioning installer in any incorporated city of this state having a system of waterworks or sewage unless registered and licensed to do so by the board. Installation and repair of water conditioning equipment shall be done by the person holding a water conditioning installer’s license.
  2. The board shall hold not less than one public meeting per year for the purpose of examination of persons who may desire to become registered and licensed in the water conditioning business pursuant to this chapter. Notice and time of such examination shall otherwise be in accordance with section 43-18-12 and the examination provided for herein may be held in conjunction with the examination provided for in chapter 43-18.
  3. Examination for licenses and registration shall be upon application as prescribed by the board and payment of the examination fee. Such fee shall be forty dollars and twenty dollars for registration and licensure as a water conditioning contractor and water conditioning installer, respectively. If the holder of an installer’s license is also a contractor, the fee shall be forty dollars. The examination shall be as prescribed by the board but shall be limited to the installation and repair of water conditioning equipment as such relates to plumbing. The issuance of licenses and registrations hereunder shall be as prescribed by the board which shall be guided in such actions by the provisions of section 43-18-13.
  4. An apprentice may be employed by any licensee under this chapter. When so employed the apprentice shall perform the apprentice’s employment under the direct supervision of the licensee and when engaged in installation or repair pursuant to this chapter the apprentice shall be under the direct supervision of a licensed installer. Upon employment and termination of employment the name of the apprentice and the apprentice’s employer shall be communicated to the board.

Source:

S.L. 1973, ch. 355, § 1; 1993, ch. 54, § 106.

Notes to Decisions

Licensed Plumbers.

Prior to enactment of this chapter, installation and servicing of water softeners was held to be “plumbing” so that the performance of such work by persons not licensed as plumbers violated N.D.C.C. ch. 43-18 and corresponding city ordinance. Bob Rosen Water Conditioning Co. v. Bismarck, 181 N.W.2d 722, 1970 N.D. LEXIS 151 (N.D. 1970).

43-18.1-05. Temporary licenses — Issuance.

The board, upon payment of the fees provided in this chapter, shall issue special temporary permits to engage in water conditioning installation and repair as provided in this chapter to those applicants who furnish sufficient proof that they were engaged in such business on January 1, 1973. Such special temporary permits are retroactive to January 1, 1973, and expire thirty days after the date the second examination as provided under section 43-18.1-04 is given, but no later than July 1, 1974. The board may prescribe rules and regulations under which regular temporary permits may be issued which must be generally in accordance with section 43-18-15.

Source:

S.L. 1973, ch. 355, § 1.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

43-18.1-05.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a water conditioning contractor, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 33.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-18.1-06. Renewal of license and registration — Fee.

Except for special temporary licenses as provided in this chapter, a license issued under this chapter is valid for only one year and expires on December thirty-first of the year in which it was issued. The license must be renewed by the board upon application made within thirty days after the expiration thereof and on the payment of the fees as provided in section 43-18.1-04.

Source:

S.L. 1973, ch. 355, § 1.

43-18.1-07. Revocation of licenses.

The board may revoke any license issued under the provisions of this chapter if the licensee has:

  1. Committed an offense determined by the board to have a direct bearing upon a holder’s ability to serve the public as a water conditioning contractor, or the board determines, following conviction of any offense, that a holder is not sufficiently rehabilitated under section 12.1-33-02.1;
  2. Committed a fraud in obtaining the holder’s certificate;
  3. Permitted the use of the holder’s license in violation of this chapter; or
  4. Performed work or business in an incompetent manner.

Source:

S.L. 1973, ch. 355, § 1; 1977, ch. 130, § 34.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

43-18.1-08. Revocation — Hearing — Reinstatement.

A license issued under the provisions of this chapter may be revoked only upon a charge in writing filed with the board and after a hearing thereon by the board. Such hearing must be conducted in accordance with the procedures set forth in section 43-18-19. Reinstatement of a license revoked under this chapter may be made in accordance with section 43-18-20.

Source:

S.L. 1973, ch. 355, § 1.

43-18.1-09. Violations — Penalty.

Any person that violates the state plumbing code adopted under section 43-18-09, violates subsection 1 of section 43-18.1-04, or works under the license of another person in a manner that is in violation of subsection 3 of section 43-18.1-04 is guilty of a class B misdemeanor.

Source:

S.L. 1973, ch. 355, § 1; 1975, ch. 106, § 489; 2009, ch. 359, § 4.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-18.2 Sewer and Water Installers

43-18.2-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the state board of plumbing.
  2. “Sewer and water contractor” means any person who installs, plans, and manages the installation and repair of building sewer and water service.
  3. “Sewer and water installation” means the installation of building sewer and water service and the repair of existing building sewer and water service.
  4. “Sewer and water installer” means any person, other than a sewer and water contractor, who installs and repairs building sewer and water service.

Source:

S.L. 1987, ch. 528, § 1; 1989, ch. 526, § 6.

43-18.2-02. Duties of the board.

The board shall:

  1. Enforce this chapter.
  2. Adopt rules not inconsistent with this chapter for the examination, regulation, and licensing of sewer and water contractors and sewer and water installers.
  3. Exempt from the provisions of sections 43-18.2-06, 43-18.2-07, and 43-18.2-08 those North Dakota sewer and water contractors and installers as defined in section 43-18.2-01 who have at least one year’s work experience prior to July 1, 1987.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-03. Licenses.

No person, firm, corporation, or limited liability company, except plumbers holding valid licenses under chapter 43-18, may engage in the business of sewer and water contractor or sewer and water installer unless registered and licensed by the board to do so. This license allows the licensee to do plumbing necessary for sewer and water installation.

Source:

S.L. 1987, ch. 528, § 1; 1989, ch. 526, § 7; 1993, ch. 54, § 106.

43-18.2-04. Sewer and water installer apprentice license.

All applicants for a building sewer and water installer apprentice license shall complete an application identifying the building sewer and water installer under whose supervision the applicant is working. The license is without charge for two years and must be renewed annually.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-05. Out-of-state applicants.

An applicant for a sewer and water contractor’s license or a sewer and water installer’s license from out of state may take the examination upon showing by affidavits that the applicant has experience in the state in which the applicant is licensed. This experience must be the same as is required of applicants from this state. The board shall provide applicants with application forms and affidavit forms necessary to comply with this section. The secretary-treasurer of the board shall investigate the validity of the affidavits. A rejected application must be treated as an adjudicative proceeding.

Source:

S.L. 1987, ch. 528, § 1; 1997, ch. 277, § 18.

43-18.2-06. Experience for testing.

An applicant for a sewer and water installer’s license shall show evidence of two years’ experience as a building sewer and water installer apprentice in this state. Applicants for a sewer and water installation contractor’s license must have one year’s experience as an installer in this state. All applicants shall show that their work complies with the state plumbing code. Proof of experience must be shown by affidavits which the board may investigate. The board shall provide applicants with application forms. If the application is rejected, the matter must be treated as an adjudicative proceeding.

Source:

S.L. 1987, ch. 528, § 1; 1997, ch. 277, § 19.

43-18.2-07. Examination requirements.

The examination for applicants for licensure must consist of:

  1. Questions pertaining to the application and maintenance of basic principles of sewer and water installation.
  2. Questions which require the application of the state plumbing code and the state industrial safety code to building sewer and water installation.

The questions for the sewer and water contractor and the building sewer and water installer need not be the same. The passing grade for the building sewer and water contractor must be eighty percent, and the sewer and water installer’s passing grade must be seventy percent.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-08. Examination fees.

An applicant for a sewer and water contractor’s license shall pay an examination fee of one hundred dollars, and an applicant for a building sewer and water installer’s license shall pay an examination fee of twenty-five dollars before taking the examination for the first time. The re-examination fee is fifty dollars for a sewer and water contractor’s license and ten dollars for a sewer and water installer’s license. No additional fee may be charged for the first year of licensure. No applicant may be examined for the same license more often than every three months.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-09. License renewal fees.

The license renewal fee for a sewer and water contractor after the first year of licensure may not exceed one hundred dollars per year, and the license renewal fee for a sewer and water installer after the first year of licensure may not exceed twenty-five dollars per year. The license renewal fee for a sewer and water installer apprentice after the first two years of licensure is twenty-five dollars.

Source:

S.L. 1987, ch. 528, § 1; 1989, ch. 526, § 8.

43-18.2-10. Revocation of licenses.

The board may revoke any license issued under this chapter if the licensee has:

  1. Committed an offense, as defined by section 12.1-01-04, determined by the board to have a direct bearing upon a holder’s ability to serve the public as a sewer and water contractor, sewer and water installer, or a sewer and water installer apprentice, or the board determines, following conviction of any offense, that a holder is not sufficiently rehabilitated under section 12.1-33-02.1;
  2. Committed a fraud in obtaining the license;
  3. Permitted the use of the license in violation of this chapter; or
  4. Performed work or business in an incompetent manner as determined by the board.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-11. Administration of funds — Continuing appropriation.

All fees and moneys obtained by the board through the administration of this chapter must be used for the regulation of the business of sewer and water installation and repair, and are appropriated to the board for this use. This appropriation is a continuing appropriation of all such funds. The handling and administration of the funds must otherwise be in accordance with section 54-44-12.

Source:

S.L. 1987, ch. 528, § 1.

43-18.2-12. Violation — Penalty.

Any person that violates the state plumbing code adopted under section 43-18-09, violates section 43-18.2-03, or works under the license of another person in a manner that is in violation of section 43-18.2-06 is guilty of a class B misdemeanor.

Source:

S.L. 1987, ch. 528, § 1; 2009, ch. 359, § 5.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-19 Professional Engineers [Repealed]

[Repealed by S.L. 1967, ch. 352, § 35]

CHAPTER 43-19.1 Professional Engineers and Land Surveyors

43-19.1-01. General provisions.

In order to safeguard life, health, and property, and to promote the public welfare, the practice of engineering and land surveying in this state is hereby declared to be subject to regulation in the public interest, and it hereby is declared necessary that a state board of registration for professional engineers and land surveyors be established, which in the exercise of its powers is deemed to be an administrative agency within the purview of chapter 28-32. It is unlawful for any person to practice, or to offer to practice, professional engineering or land surveying in this state, as defined in the provisions of this chapter, or to use in connection with the person’s name or otherwise assume, or advertise any title or description tending to convey the impression that the person is an engineer or land surveyor, unless such person has been duly registered or exempted under the provisions of this chapter. The right to engage in the practice of engineering or land surveying is deemed a personal right, based on the qualifications of the individual as evidenced by the individual’s certificate of registration, which is not transferable.

Source:

S.L. 1967, ch. 352, § 1.

Collateral References.

Engineering services: what amounts to architectural or engineering services within license requirements, 82 A.L.R.2d 1013.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he is not licensed in the latter state, 32 A.L.R.3d 1151.

Liability or indemnity policy on civil engineer, architect or the like, construction and application of, 83 A.L.R.3d 539, section 4 superseded by 14 A.L.R.5th 695.

Event triggering liability insurance coverage as occurring within period of time covered by liability insurance policy where injury or damage is delayed—modern cases, 14 A.L.R.5th 695.

Notes to Decisions

Violations Found.

Decision of the Board of Registration for Professional Engineers and Land Surveyors that an engineer violated regulations relating to disclosure of confidential information was supported by a preponderance of the evidence because the engineer’s information regarding a consulting services agreement was in connection with a specific project in which he gained specialized knowledge; the engineer had knowledge of the services while working for an employer and worked on the project for a competitor. Berg v. N.D. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 2018 ND 274, 920 N.W.2d 896, 2018 N.D. LEXIS 282 (N.D. 2018).

Decision of the Board of Registration for Professional Engineers and Land Surveyors that an engineer violated regulations relating to disclosure of confidential information was supported by a preponderance of the evidence because the Board found that the engineer disclosed his employer’s financial information relating to its transportation department. Berg v. N.D. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 2018 ND 274, 920 N.W.2d 896, 2018 N.D. LEXIS 282 (N.D. 2018).

Decision of the Board of Registration for Professional Engineers and Land Surveyors that an engineer violated regulations relating to disclosure of confidential information was supported by a preponderance of the evidence because the engineer, as an agent of a competitor, disclosed an employer’s confidential information to the competitor; the engineer downloaded the contents of his computer hard drive onto an external hard drive and attached the hard drive to his laptop with the competitor. Berg v. N.D. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 2018 ND 274, 920 N.W.2d 896, 2018 N.D. LEXIS 282 (N.D. 2018).

Factual findings of the North Dakota State Board of Registration for Professional Engineers and Land Surveyors regarding engineers’ failure to disclose a known or potential conflict of interest were supported by a preponderance of the evidence because their judgment and services were influenced or could have been influenced by their decision to form a competing firm; the engineers failed to disclose to the employer their participation in the formation and planning of a competitive business. Berg v. N.D. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 2018 ND 274, 920 N.W.2d 896, 2018 N.D. LEXIS 282 (N.D. 2018).

Preponderance of the evidence supported the factual findings of the North Dakota State Board of Registration for Professional Engineers and Land Surveyors regarding engineers’ improper solicitation because the engineers knowingly sought or accepted employment for professional services for an assignment for which their former employer was previously employed or contracted to perform. Berg v. N.D. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 2018 ND 274, 920 N.W.2d 896, 2018 N.D. LEXIS 282 (N.D. 2018).

43-19.1-02. Definitions.

In this chapter unless the context otherwise requires:

  1. “Board” means the state board of registration for professional engineers and land surveyors.
  2. “Engineer” means a professional engineer.
  3. “Engineer intern” means an individual who complies with the requirements for education, experience, and character and who has passed an examination in the fundamental engineering subjects, as provided in sections 43-19.1-12 and 43-19.1-15.
  4. “Engineering surveys” means all survey activities required to support the sound conception, planning, design, construction, maintenance, and operation of engineered projects, which include locating or laying out alignments, positions, or elevations for the construction of fixed works. The term does not include the surveying of real property for the establishment of land boundaries, rights of way, easements, and the dependent or independent surveys or resurveys of the public land survey system.
  5. “Land surveyor” means an individual engaged in the practice of land surveying.
  6. “Land surveyor intern” means an individual who complies with the requirements for education, experience, and character and who has passed an examination in the fundamentals of mathematics and the basic principles of land surveying as required in this chapter and as established by the board.
  7. “Practice of engineering and practice of professional engineering” means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems, engineering teaching of advanced engineering subjects or courses related thereto, engineering surveys, and the inspection of construction for the purpose of assuring compliance with drawings and specifications; any of which embraces such service or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, or projects as are incidental to the practice of engineering. A person must be construed to practice or offer to practice engineering if the person practices any branch of the profession of engineering; if the person, by verbal claim, sign, advertisement, letterhead, card, or in any other way represents that the person is an engineer and is able to practice engineering in this state if the person through the use of some other title implies that the person is an engineer or that the person is registered under this chapter; or if the person holds out as able to perform, or does perform any engineering service or work or any other service that is recognized as engineering, for a valuable consideration for others, including the public at large.
  8. “Practice of land surveying”:
    1. Means making land boundary determinations by providing or offering to provide professional services using such sciences as mathematics, geodesy, and photogrammetry and involving the making of geometric measurements and gathering related information pertaining to the physical or legal features of the earth; improvements on the earth; and improvements on the space above, on, or below the earth and providing, utilizing, or developing the same into land survey products such as graphics, data, maps, plans, reports, descriptions, or projects. As used in this subsection, professional services include acts of consultation, investigation, testimony evaluation, expert technical testimony, planning, mapping, assembling, and interpreting gathered measurements and information related to any one or more of the following:
      1. Determining by measurement the configuration or contour of the earth’s surface or the position of fixed objects on the earth’s surface;
      2. Determining by performing geodetic land surveys the size and shape of the earth or the position of any point on the earth;
      3. Locating, relocating, establishing, re-establishing, or retracing property lines or boundaries of any tract of land, road, right of way, or easement;
      4. Making any land survey for the division, subdivision, or consolidation of any tract of land;
      5. Locating or laying out alignments, positions, or elevations for the construction of fixed works;
      6. Determining by the use of principles of land surveying the position for any survey monument, boundary or nonboundary, or reference point and establishing or replacing any such monument or reference point; and
      7. Creating, preparing, or modifying electronic or computerized or other data for the purpose of making land boundary determinations relative to the performance of the activities in paragraphs 1 through 6.
    2. Includes:
      1. Engaging in land surveying;
      2. By verbal claim, sign, advertisement, letterhead, card, or any other way representing to a person to be a professional land surveyor;
      3. Through the use of some other title implying to be a professional land surveyor or that the person is licensed or authorized under this chapter; and
      4. Holding out as able to perform or performing any land surveying service or work or any other service designated by the practitioner which is recognized as land surveying.
  9. “Professional engineer” means an individual who by reason of special knowledge or use of the mathematical, physical, and engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering education and engineering experience, is qualified to practice engineering, and who has been registered and licensed by the state board of registration for professional engineers and land surveyors.
  10. “Professional land surveyor” means a land surveyor who complies with the requirements for education, experience, and character and who has been registered and licensed by the board.
  11. “Responsible charge” means direct control and personal supervision of engineering or surveying work.
  12. “Retired registrant” means a duly registered professional engineer or land surveyor who is not engaged in active professional practice and is not required to meet the continuing professional education requirements as prescribed by the board. A retired registrant is issued a certificate of registration indicating “retired” status.

Source:

S.L. 1967, ch. 352, § 2; 1983, ch. 482, § 2; 2003, ch. 363, § 1; 2009, ch. 368, § 1; 2011, ch. 314, § 1.

43-19.1-03. Board — Appointments — Terms.

A state board of registration for professional engineers and land surveyors is hereby created the duty of which is to administer this chapter. The board consists of one professional land surveyor and four professional engineers. The board members who are professional engineers must be appointed by the governor from among a list of nominees submitted to the governor by the North Dakota society of professional engineers who must have the qualifications required by section 43-19.1-04, such list must include the names of at least three nominees for each vacancy to be filled. The governor shall appoint the professional land surveyor member of the board from a list of nominees submitted by the North Dakota society of professional land surveyors. The list must include the names of at least three nominees for the vacancy to be filled. The members must possess the qualifications required by section 43-19.1-04. The members of the board must be appointed for five-year terms that are staggered so the term of one member expires June thirtieth of each year. Each member of the board shall receive a certificate of appointment from the governor and shall file with the secretary of state a written oath or affirmation for the faithful discharge of the member’s official duties. On the expiration of the term of any member, the governor shall appoint for a term of five years a board member having the qualifications required in section 43-19.1-04 to take the place of the member whose term on the board is about to expire. A member may be reappointed. Each member shall hold office until the expiration of the term for which appointed or until a successor has been duly appointed and has qualified.

Source:

S.L. 1967, ch. 352, § 3; 1983, ch. 481, § 1; 2009, ch. 368, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-19.1-04. Board — Qualifications.

Each professional engineer board member must be a professional engineer who is a citizen and resident of this state, has been registered in this state a minimum of eight years, has been engaged in the lawful practice of engineering for at least twelve years, and has had responsible charge of important engineering work for at least five years. Each professional land surveyor board member must be a professional land surveyor who is a citizen and resident of this state, has been registered as a professional land surveyor in this state a minimum of eight years, and has been responsible for important land surveying work for at least five years.

Source:

S.L. 1967, ch. 352, § 4; 1983, ch. 481, § 2; 2009, ch. 368, § 3.

43-19.1-05. Board — Compensation and expenses.

Each member of the board is entitled to receive per diem, in an amount established by the board which may not exceed one hundred thirty-five dollars, when attending to the work of the board or any of the board’s committees and for the time spent in necessary travel and is entitled to be reimbursed for all actual traveling, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this chapter.

Source:

S.L. 1967, ch. 352, § 5; 1977, ch. 404, § 1; 2009, ch. 368, § 4.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-19.1-06. Board — Removal of members — Vacancies.

The governor may remove any member of the board for misconduct, incompetency, neglect of duty, or for any sufficient cause, in the manner prescribed by law for removal of state officials. Vacancies in the membership of the board must be filled for the unexpired term by appointment by the governor as provided in section 43-19.1-03.

Source:

S.L. 1967, ch. 352, § 6.

Cross-References.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

43-19.1-07. Board — Organization and meetings.

The board shall hold at least two regular meetings each year. The board shall elect or appoint annually the following officers: a chairman, a vice chairman, and a secretary. A quorum of the board consists of not fewer than three members.

Source:

S.L. 1967, ch. 352, § 7; 2009, ch. 368, § 5.

43-19.1-08. Board — Powers.

The board may:

  1. Adopt and amend all bylaws, rules of procedure, and regulations to administer and carry out the provisions of this chapter and for the conduct of the board’s affairs and functions which may be reasonably necessary for the proper performance of the board’s duties and the regulation of the board’s proceedings, meetings, records, and examinations and the conduct thereof, and to adopt a code of ethics that must be binding upon all persons registered under or subject to this chapter.
  2. Adopt and have an official seal, which must be affixed to each certificate issued.
  3. Employ such clerks, technical experts, and attorneys as the board determines necessary or desirable to carry out this chapter.
  4. Hold hearings, administer oaths, and take and record testimony; under the hand of the board’s chairman and the seal of the board, subpoena witnesses and compel the witnesses’ attendance; require the submission of books, papers, documents, or other pertinent data in any disciplinary matters, or in any case when a violation of this chapter or of the rules or regulations adopted by the board is alleged; and make findings, orders, and determinations that have the force and effect of law which are subject to review by the courts of this state in the manner provided by chapter 28-32. Upon failure or refusal of any person to comply with any such order of the board or to honor the board’s subpoena, the board may apply to a court of any jurisdiction to enforce compliance with the order or subpoena.
  5. Apply in the name of the state for relief by injunction, without bond, to enforce the provisions of this chapter or to restrain any violation of this chapter. In such proceedings, it is not necessary to allege or prove, either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the board are not personally liable under this proceeding.

Source:

S.L. 1967, ch. 352, § 8; 2009, ch. 368, § 6.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-19.1-09. Receipts and disbursements.

The secretary of the board shall receive and account for all moneys derived under the provisions of this chapter and shall deposit and disburse the money derived under this chapter in accordance with section 54-44-12. The secretary shall give a surety bond to the state in such sum as may be required by the board. The premium on the bond is a proper and necessary expense of the board. The secretary shall receive such salary as the board shall determine. The board shall employ clerical or other assistants as are necessary for the proper performance of the board’s work and shall make expenditures of this fund for any purpose the board determines is reasonably necessary for the proper performance of the board’s duties under this chapter, including the expenses of the board’s delegates to meetings of and membership fees to the national council of examiners for engineering and surveying and any of the organization’s subdivisions. Under no circumstances may the total amount of warrants issued in payment of the expenses and compensation provided for in this chapter exceed the amount of moneys collected.

Source:

S.L. 1967, ch. 352, § 9; 1971, ch. 510, § 10; 1975, ch. 258, § 23; 2009, ch. 368, § 7.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-19.1-10. Records and reports.

The board shall:

  1. Keep a record of the board’s proceedings and of all applications for registration. The record must show the name, age, and last-known address of each applicant; the date of application, the place of business of such applicant, the applicant’s education, experience, and other qualifications; type of examination required; whether the applicant was rejected; whether a certificate of registration was granted; the date of the action of the board; and such other information as may be deemed necessary by the board. The record of the board is prima facie evidence of the proceeding of the board and a transcript of board proceedings which is certified by the secretary under seal is admissible as evidence with the same force and effect as if the original were produced.
  2. Annually, in compliance with state law, submit a report of the board’s transactions of the preceding year.

Source:

S.L. 1967, ch. 352, § 10; 2009, ch. 368, § 8.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-19.1-11. Roster.

A complete roster showing the names and last-known addresses of all professional engineers and land surveyors must be made available by the secretary of the board at intervals as established by board regulations. Copies of this roster must be made available to each registrant and all county auditors and city auditors and may be distributed or sold to the public.

Source:

S.L. 1967, ch. 352, § 11; 2009, ch. 368, § 9.

43-19.1-12. General requirements for registration.

To be eligible for registration as a professional engineer or land surveyor or for certification as an engineer intern or land surveyor intern, an applicant must be of good character and reputation and shall submit a written application to the board containing such information as the board may require together with five references, three of which references must be professional engineers in the case of engineers or three of which references must be professional land surveyors in the case of land surveyors, having personal knowledge of the applicant’s engineering or land surveying experience, or in the case of an application for certification as an engineer intern or land surveyor intern, by three character references.

Source:

S.L. 1967, ch. 352, § 12; 1983, ch. 482, § 3; 2009, ch. 368, § 10.

43-19.1-12.1. Conviction not bar to registration — Exceptions.

Conviction of an offense does not disqualify an individual from registration under this chapter unless the board determines that the offense has a direct bearing upon an individual’s ability to serve the public as an engineer or land surveyor or that following conviction of any offense the individual is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 35; 2009, ch. 368, § 11.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-19.1-13. Registration without examination — Professional engineers.

An applicant otherwise qualified must be admitted to registration as a professional engineer without examination if the applicant is:

  1. An individual holding a certificate of registration to engage in the practice of engineering, on the basis of comparable qualifications, issued to that applicant by a proper authority of a state, territory, or possession of the United States, the District of Columbia, or any foreign country and who, in the opinion of the board, based upon verified evidence, meets the requirements of this chapter; or
  2. An individual registered as a professional engineer by the state of North Dakota under chapter 43-19, on the thirtieth day of June 1967.

Source:

S.L. 1967, ch. 352, § 13; 2009, ch. 368, § 12.

Note.

Chapter 43-19, referred to in subsection 2 of this section, has been repealed.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he is not licensed in the latter state, 32 A.L.R.3d 1151.

43-19.1-14. Registration with examination — Professional engineers.

An applicant otherwise qualified must be admitted to registration as a professional engineer if the applicant has successfully passed a written examination of at least eight hours in the principles and practice of engineering, as prescribed by the board, and has one of the following additional qualifications:

  1. Is an engineer intern with a baccalaureate degree in engineering from an institution offering accredited programs approved by the board as being of satisfactory standing, who has a specific record of an additional four years or more of experience in engineering work of a grade and character which indicates to the board that the applicant may be competent to practice engineering.
  2. Is an engineer intern with a baccalaureate degree in engineering from a program that is not accredited but is approved by the board, who has eight years or more of progressive experience in engineering work of a character and grade which indicates to the board that the applicant is competent to practice engineering.
  3. Is an engineer intern with a specific record of at least twenty years of lawful practice in engineering work during at least ten years of which the applicant has been in responsible charge of important engineering work which is of a grade and character that indicates to the board that the applicant is competent to practice engineering, who has been approved for the fundamentals of engineering examination by the board before July 1, 2004, and who holds a valid engineer intern certificate as of January 1, 2006.
  4. Is an engineer intern who meets one of the educational requirements listed in subsection 1, 2, or 5, who has been a teacher of engineering in a college or university offering an approved engineering curriculum of four years or more, and who has had a minimum of two years of nonteaching engineering experience that is of a character and grade that indicates to the board that the applicant is competent to practice engineering.
  5. Is an engineer intern with a baccalaureate degree in an engineering-related program, who has at least twelve years of progressive experience in engineering work of a character and grade which indicates to the board that the applicant is competent to practice engineering.

Source:

S.L. 1967, ch. 352, § 14; 2003, ch. 363, §§ 2, 3; 2009, ch. 368, § 13; 2011, ch. 315, § 1.

43-19.1-15. Additional qualifications of engineer interns.

Except in the case of an individual who filed an application before July 1, 1967, and any subsequent reapplication by such individual, an applicant otherwise qualified must be admitted to certification as an engineer intern. An engineer intern is an individual who has:

  1. A baccalaureate degree in engineering from an institution that offers accredited programs approved by the board and has passed the board’s written examination of at least eight hours in the fundamentals of engineering shall be certified or enrolled as an engineer intern.
  2. A baccalaureate degree in engineering from a program that is not accredited but is approved by the board, who has a specific record of at least four years of experience in engineering work of a grade and character satisfactory to the board, and who passes the board’s written examination of at least eight hours in the fundamentals of engineering.
  3. A baccalaureate degree in an engineering-related program, who has a specific record of at least six years of experience in engineering work of a grade and character satisfactory to the board, and who passes the board’s written examination of at least eight hours in the fundamentals of engineering.

Source:

S.L. 1967, ch. 352, § 15; 2003, ch. 363, § 4; 2009, ch. 368, § 14.

43-19.1-16. Registration — Professional land surveyor.

An individual who shows, to the satisfaction of the board, that the individual is otherwise qualified and is over the age of eighteen years is eligible for registration as a professional land surveyor, if the individual has passed a board-approved examination regarding state laws and rules or other surveying issues specific to the state and:

  1. Holds a certificate of registration to engage in the practice of land surveying issued by proper authority of a state, territory, possession of the United States, the District of Columbia, or any foreign country, based on requirements and qualifications as shown by the individual’s application which, in the opinion of the board, are equal to or higher than the requirements of this chapter;
  2. Holds a certificate as a land surveyor intern issued by the board and:
    1. In addition to experience that may be required to qualify for certification as a land surveyor intern, completed at least four years of land surveying experience of a character satisfactory to the board; and
    2. Passed a board-approved written examination in the principles and practice of land surveying; or
  3. Is registered as a land surveyor by the state of North Dakota, under the provisions of former chapter 43-24, on the thirtieth day of June 1967.

Source:

S.L. 1967, ch. 352, § 16; 1973, ch. 120, § 49; 2009, ch. 368, § 15; 2019, ch. 358, § 1, effective August 1, 2019.

Note.

Chapter 43-24, referred to in subsection 4 of this section, has been repealed.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he is not licensed in the latter state, 32 A.L.R.3d 1151.

43-19.1-16.1. Qualifications of land surveyor interns. [Repealed effective July 1, 2028]

  1. Before July 1, 2028, an applicant for certification as a land surveyor intern may qualify for certification by meeting the requirements of this section or section 43-19.1-16.2. After June 30, 2028, a qualified applicant for certification as a land surveyor intern must meet the requirements of section 43-19.1-16.2.
  2. An applicant for certification as a land surveyor intern who has at least four years of qualifying land surveying experience of a character satisfactory to the board, of which a formal education in an accredited engineering or land surveying curriculum may constitute a part, may receive from the board, upon passing a written examination on the fundamentals of mathematics and the basic principles of land surveying, a certificate stating the applicant has passed the examination and been recorded as a land surveyor intern.

Source:

S.L. 1983, ch. 482, § 1; 2009, ch. 368, § 16; 2019, ch. 358, § 2, effective August 1, 2019.

43-19.1-16.1. Qualifications of land surveyor interns. [Repealed effective July 1, 2028]

Source:

S.L. 1983, ch. 482, § 1; 2009, ch. 368, § 16; 2019, ch. 358, § 2, effective August 1, 2019; repealed by 2019, ch. 358, § 4, effective July 1, 2028.

43-19.1-16.2. Qualifications of land surveyor interns.

The board shall certify as a land surveyor intern an otherwise qualified applicant who has passed a board-approved written examination on the fundamentals of mathematics and the basic principles of land surveying and:

  1. Has a baccalaureate degree in land surveying from an institution that offers board-approved accredited programs;
  2. Has a baccalaureate degree in a board-approved program other than land surveying and:
    1. Has board-approved educational training in land surveying in connection with the baccalaureate degree or other program; and
    2. Has at least two years of qualifying land surveying experience of a character satisfactory to the board;
  3. Has an associate degree in land surveying from a board-approved program and has at least two years of qualifying land surveying experience of a character satisfactory to the board; or
  4. Has a certificate in land surveying from an institution that offers a board-approved program and has at least four years of qualifying land surveying experience of a character satisfactory to the board.

Source:

S.L. 2019, ch. 358, § 3, effective August 1, 2019.

43-19.1-17. Application for registration.

Application for registration as a professional engineer or land surveyor or for certification as an engineer intern or land surveyor intern must be on a form prescribed and furnished by the board containing statements made under oath, showing the applicant’s education, a detailed summary of the applicant’s technical experience, and references as required by this chapter and must be accompanied by registration fees.

Source:

S.L. 1967, ch. 352, § 17; 1983, ch. 482, § 4; 2009, ch. 368, § 17.

43-19.1-17.1. Retired registrant.

The board may recognize an individual who is no longer practicing as an engineer or land surveyor as a retired registrant.

Source:

S.L. 2009, ch. 368, § 32.

43-19.1-18. Registration fees.

The board shall establish registration fees for professional engineers, land surveyors, engineer interns, and land surveyor interns in the amount the board determines necessary to accomplish the purposes of the board as provided in this chapter. The registration fees may not exceed the amount of one hundred dollars for a one-year period or two hundred dollars for a two-year period. If the board denies the issuance of a certificate to an applicant, the fee paid may be retained as an application fee.

Source:

S.L. 1967, ch. 352, § 18; 1977, ch. 404, § 2; 1983, ch. 482, § 5; 1997, ch. 374, § 1; 2003, ch. 364, § 1; 2009, ch. 368, § 18.

43-19.1-19. Examinations.

Written examinations must be held at such times and places as the board shall determine. Examinations required on fundamental engineering or land surveying subjects may be taken at any time prescribed by the board. The final examinations may not be taken until the applicant has completed a period of engineering or land surveying experience as provided in this chapter. The board shall establish the minimum passing grade on any examination. A candidate failing one examination may apply for re-examination, which may be granted upon payment of a fee established by the board. Any candidate for registration having an average grade that does not meet the standards set by the board may not apply for re-examination for one year from the date of such examination.

Source:

S.L. 1967, ch. 352, § 19; 1977, ch. 404, § 3; 2009, ch. 368, § 19.

43-19.1-20. Certificates.

The board shall issue a certificate of registration upon payment of the registration fee as provided for in this chapter to any applicant who in the opinion of the board has met the requirements of this chapter. Enrollment cards must be issued to those who qualify as engineer interns or land surveyor interns. Certificates of registration must carry the designation “professional engineer” or “professional land surveyor”, must show the full name of the registrant without any titles, must be numbered, and must be signed by the chairman and the secretary under seal of the board. The issuance of a certificate of registration by the board is prima facie evidence the individual named on the certificate is entitled to all rights and privileges of a professional engineer or land surveyor during the term of which the certificate providing the same has not been revoked or suspended.

Source:

S.L. 1967, ch. 352, § 20; 1983, ch. 482, § 6; 2009, ch. 368, § 20.

43-19.1-21. Seals.

Each registrant under this chapter upon registration may obtain a seal of the design authorized by the board, bearing the registrant’s name, registration number, and the legend “registered professional engineer” or “registered professional land surveyor”. Final engineering drawings, specifications, maps, plats, reports, or other documents prepared by a person required to be registered under this chapter, when presented to a client, contractor, subconsultant, or any public agency, must be signed, dated, and stamped with the seal or facsimile of the seal. A working drawing or unfinished document must contain a statement to the effect the drawing or document is preliminary and not for construction, recording purposes, or implementation. It is unlawful for a registrant to affix or permit the registrant’s seal and signature or facsimiles thereof to be affixed to any engineering drawings, specifications, maps, plats, reports, or other documents after the expiration or revocation or during the suspension of a certificate, or for the purpose of aiding and abetting any other person to evade or attempt to evade any provision of this chapter.

Source:

S.L. 1967, ch. 352, § 21; 2009, ch. 368, § 21.

43-19.1-22. Expirations and renewals.

A certificate of registration expires on December thirty-first of the year of issuance if registration is on an annual basis and of the year after issuance if issued on a biennial basis and becomes invalid after that date unless renewed. The secretary of the board shall notify every registrant under this chapter of the date of the expiration of the registrant’s certificate of registration and the amount of fee required for its renewal. The notice must be mailed to the registrant at the registrant’s last-known address at least one month in advance of the expiration of the registrant’s certificate. Renewal may be effected at any time before or during the month of December by the payment of a fee as established by the board, not to exceed the fees established in section 43-19.1-18. Renewal of an expired certificate may be effected under rules adopted by the board regarding requirements for re-examination and penalty fees.

Source:

S.L. 1967, ch. 352, § 22; 1997, ch. 374, § 2; 2009, ch. 368, § 22.

43-19.1-23. Reissuance of certificates.

A new certificate of registration to replace any certificate lost, destroyed, or mutilated may be issued subject to the rules of the board. The board may establish a reasonable charge for such issuance.

Source:

S.L. 1967, ch. 352, § 23; 2009, ch. 368, § 23.

43-19.1-24. Code of ethics.

The board shall cause to have prepared and shall adopt a code of ethics, a copy of which must be made available to every registrant and applicant for registration under this chapter, and which must be published in the roster provided under this chapter. Such publication constitutes due notice to all registrants. The board may revise and amend this code of ethics from time to time and shall notify each registrant of such revisions or amendments. The code of ethics applies to all certificate holders, including specialists in a particular branch of the engineering or surveying profession.

Source:

S.L. 1967, ch. 352, § 24; 2009, ch. 368, § 24.

43-19.1-24.1. Engineer not liable for contractor’s fault unless responsibility assumed — Liability for own negligence.

An engineer is not liable for the safety of persons or property on or about a construction project site, or for the construction techniques, procedures, sequences and schedules, or for the conduct, action, errors, or omissions of any construction contractor, subcontractor, or material supplier, their agents or employees, unless the engineer assumes responsibility therefor by contract or by the engineer’s actual conduct. Nothing herein may be construed to relieve an engineer from liability for negligence, whether in the engineer’s design work or otherwise.

Source:

S.L. 1987, ch. 529, § 1.

43-19.1-25. Disciplinary action — Revocations, suspensions, or reprimand.

The board may suspend, refuse to renew, or revoke the certificate of registration of and may reprimand any registrant. These powers apply to any registrant who is found guilty of any of the following:

  1. The practice of any fraud or deceit in obtaining a certificate of registration.
  2. Any gross negligence, incompetence, or misconduct in the practice of engineering or land surveying.
  3. Any offense determined by the board to have a direct bearing upon an individual’s ability to serve the public as a professional engineer and land surveyor; or when the board determines, following conviction of any offense, that an individual is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. The violation of the code of ethics adopted by the board.

Source:

S.L. 1967, ch. 352, § 25; 1977, ch. 130, § 36; 2003, ch. 364, § 2; 2009, ch. 368, § 25; 2015, ch. 299, § 1, effective August 1, 2015.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Partnerships and corporations subject to disciplinary proceedings, see N.D.C.C. § 43-19.1-27.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Revocation or suspension of license of professional engineer, 64 A.L.R.3d 509.

43-19.1-26. Disciplinary action — Procedure.

Any person may file charges of fraud, deceit, gross negligence, incompetence, misconduct, or violation of the code of ethics against any individual registrant. Such charges must be in writing and must be filed with the secretary of the board. All charges, unless dismissed by the board as unfounded or trivial, must be heard by the board within six months following the filing of charges unless the accused registrant waives this requirement. The matters considered at the hearing must include all charges made in the original filing, together with any related or additional matters or charges that arise in connection with the investigation of the original charges, and which are set forth in a specification of issues for the hearing. The time and place for the hearing must be fixed by the board and a copy of the charges, together with a notice of the time and place of hearing, and a specification of the issues to be considered at the hearing must be served upon the accused registrant either personally or sent by registered mail to the last-known address of the registrant at least thirty days before the date fixed for hearing. At any hearing the accused registrant has the right to appear in person or by counsel, or both; to cross-examine witnesses appearing against the accused; and to produce evidence and witnesses in defense of the accused. If the accused fails or refuses to appear, the board may proceed to hear and determine the validity of the issues set forth in the specification of issues. Following the hearing, the board members who did not serve on the investigative panel shall deliberate in executive session and if a majority of the board members who did not serve on the investigative panel vote in favor of sustaining all or part of the issues set forth in the specification of issues, the board shall make findings of fact and conclusions of law and shall issue the board’s order and serve the findings, conclusions, and order upon the accused. In the order the board may reprimand, suspend, refuse to renew, or revoke the accused registrant’s certificate of registration. Any registrant who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking that registrant’s certificate of registration may appeal the board’s action to the district court under the procedures provided by chapter 28-32.

Source:

S.L. 1967, ch. 352, § 26; 2009, ch. 368, § 26; 2015, ch. 299, § 2, effective August 1, 2015.

43-19.1-27. Right to practice.

  1. A person may not practice or offer to practice professional engineering or land surveying unless the person is an individual registered to practice under or exempt from the provisions of this chapter. The practice of engineering by a professional engineer which includes service or creative work that is included in both the definition of the practice of engineering and the definition of land surveying does not require registration as a professional land surveyor. The practice of land surveying by a professional land surveyor which includes a service or creative work that is included in both the definition of the practice of engineering and the definition of land surveying does not require registration as a professional engineer.
  2. The following are not considered offering to practice engineering or surveying in the solicitation of work if the engineer or surveyor is licensed in another jurisdiction:
    1. Advertising in a publication or electronic media if there is no holding out of professional services in jurisdictions in which not licensed.
    2. Responding to a letter of inquiry regarding a request for proposals if there is written disclosure the engineer, surveyor, or firm is not licensed in this state and the response is limited to inquiries regarding scope of project and to demonstrate interest.
    3. Responding to a letter of inquiry from a prospective client if there is written disclosure that the engineer, surveyor, or firm is not licensed in this state and the response is limited to inquiries regarding scope of project and to demonstrate interest.
    4. Using the title or designation “professional engineer”, “licensed engineer”, “P.E.”, “professional surveyor”, “licensed surveyor”, “P.L.S.”, or similar title or designation in correspondence or on business cards from an office in the jurisdiction in which licensure is held.
  3. Notwithstanding subsection 2, a proposal may not be submitted, a contract may not be signed, or work may not be commenced until an engineer, surveyor, or firm becomes licensed as provided under this chapter.
  4. A registered professional engineer or registered land surveyor may practice or offer to practice professional engineering or land surveying as an organization or as an individual operating under a trade name if the organization is registered under or exempt from the provisions of this chapter.
  5. In addition to and without impairing any rights or exemptions granted others in this chapter, the practice of or offer to practice professional engineering or land surveying by an organization or by an individual operating under a trade name is permitted in this state if:
    1. All officers, employees, and agents of such an organization or the individual operating under a trade name who will perform the practice of engineering or of land surveying within this state are registered under this chapter;
    2. Each person in responsible charge of the activities of any organization or individual operating under a trade name which activities constitute the practice of professional engineering and land surveying, is a professional engineer or land surveyor registered in this state or an individual authorized to practice professional engineering or land surveying as provided in this chapter;
    3. Such organization or individual operating under a trade name has been issued a certificate of commercial practice by the board as provided by subsection 6;
    4. Each organization or individual operating under a trade name is jointly and severally responsible with and for the conduct or acts of its agents, employees, officers, or managers in respect to any professional engineering or land surveying services performed or to be executed in this state. An individual practicing professional engineering or land surveying may not be relieved of the responsibility for the individual’s conduct or acts performed by reason of the individual’s employment by or relationship with such organization or individual operating under a trade name; and
    5. All final drawings, specifications, plans, reports, or other engineering or land surveying papers or documents involving the practice of professional engineering or land surveying, when presented to a client, contractor, subconsultant, or any public agency, must be dated and bear the seals and signatures of the professional engineers or land surveyors registered under this chapter by whom or under whose responsible charge they were prepared. A working drawing or unfinished document must contain a statement to the effect the drawing or document is preliminary and not for construction, recording purposes, or implementation. It is unlawful for a registrant to affix or permit the registrant’s seal and signature or facsimiles thereof to be affixed to any engineering drawing, specification, map, plat, report, or other document after the expiration or revocation or during the suspension of a certificate or for the purpose of aiding and abetting any other person to evade or attempt to evade any provision of this chapter.
  6. An organization or individual operating under a trade name desiring a certificate of commercial practice or the renewal thereof shall file a written application with the board setting forth the names and addresses of all partners, officers, directors, managers, or governors, if any, of such organization and the names and addresses of all employees who are duly registered to practice professional engineering or land surveying in this state, and who are or will be in responsible charge of any engineering or land surveying in this state by such organization or individual operating under a trade name, together with other information as the board may require. Upon the receipt of an application, and of a fee in an amount established by the board for the initial certificate or renewal thereof, but not to exceed the amount of two hundred dollars per year, the board shall issue to such organization or individual operating under a trade name a certificate of commercial practice or a renewal thereof, which certificate of commercial practice is not transferable. If the board finds an error in an application or that facts exist which would entitle the board to suspend or revoke a certificate if issued to the applicant, the board shall deny the application. If a change occurs in any of the information submitted on the application of any organization or individual operating under a trade name within the term of the certificate of commercial practice, the organization or individual operating under a trade name shall file with the board a written report with respect to the change within thirty days after the change occurs. The provisions with respect to issuance, expiration, renewal, and reissuance of the certificates of registration of individuals contained in this chapter also apply to certificates of commercial practice issued to an organization or individual operating under a trade name under this subsection. An organization or individual operating under a trade name is subject to disciplinary proceedings and penalties and certificates of commercial practice are subject to suspension or revocation for cause in the same manner and to the same extent as is provided with respect to an individual and the individual’s certificates of registration in sections 43-19.1-26, 43-19.1-29, and 43-19.1-31. “Registrant” and “certificate of registration” in sections 43-19.1-26, 43-19.1-29, and 43-19.1-31, and the provisions of such sections, include and apply respectively to any organization or individual operating under a trade name that holds a certificate of commercial practice issued under this chapter, and to such certificate of commercial practice.

Source:

S.L. 1967, ch. 352, § 27; 1977, ch. 404, § 4; 1993, ch. 54, § 106; 2009, ch. 368, § 27; 2011, ch. 314, § 2.

Cross-References.

Professional corporations, see N.D.C.C. ch. 10-31.

Collateral References.

Engineering services: what amounts to architectural or engineering services within license requirements, 82 A.L.R.2d 1013.

43-19.1-28. Public works.

Except as otherwise provided by law, the state and its political subdivisions may not engage in the construction of public works involving the practice of professional engineering when the contemplated expenditure for the project exceeds the sum of two hundred thousand dollars, unless the engineering drawings and specifications and estimates have been prepared by, and the construction administration and construction observation services are executed under the supervision of, a registered professional engineer. Any engineering contract executed in violation of this section is void.

Source:

S.L. 1967, ch. 352, § 28; 1983, ch. 483, § 1; 1997, ch. 396, § 1; 2015, ch. 154, § 2, effective August 1, 2015; 2019, ch. 381, § 1, effective August 1, 2019.

43-19.1-29. Exemption clause.

This chapter does not prevent or affect:

  1. The practice or offer to practice engineering by an individual not a resident or having no established place of business in this state, if that individual is legally qualified by registration to practice engineering in another state or country that extends similar privileges to individuals registered under this chapter. However, that individual shall make an application accompanied by the appropriate application fee to the board in writing before practicing or offering to practice engineering, and may be granted a one-time temporary permit for a definite period of time not to exceed one year to do a specific job. No right to practice engineering accrues to any applicant with respect to any other work not set forth in the temporary permit. A land surveyor may not receive a temporary permit under this subsection.
  2. The work of an employee or a subordinate of an individual holding a certificate of registration under this chapter, or an employee of an individual practicing lawfully under subsection 1; provided such work does not include final engineering or surveying designs or decisions and is done under the direct supervision of and verified by an individual holding a certificate of registration under this chapter, or an individual practicing lawfully under subsection 1.
  3. The practice of any other legally recognized profession or trade, nor does the chapter permit registered professional engineers to perform duties requiring the services of a licensed architect, as provided by the laws of the state of North Dakota licensing and regulating architects and architecture.
  4. The practice of engineering or land surveying by any individual regularly employed to perform engineering services solely for that individual’s employer or for a subsidiary or affiliated corporation or limited liability company of that individual’s employer, providing the services performed are in connection with the property, products, or services of that individual’s employer, unless the board determines the property, products, or services are of a unique type requiring registration to protect the public.
  5. The performance of work ordinarily performed by a person that operates or maintains machinery or equipment.

Source:

S.L. 1967, ch. 352, § 29; 1983, ch. 484, § 1; 1993, ch. 54, § 106; 2009, ch. 368, § 28; 2011, ch. 314, § 3.

Collateral References.

Engineering services: what amounts to architectural or engineering services within license requirements, 82 A.L.R.2d 1013.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he is not licensed in the latter state, 32 A.L.R.3d 1151.

43-19.1-30. Duties of recorder.

It is unlawful for the recorder of any county or any county or any proper public authority to file or record any map, plat, survey, or other document within the definition of land surveying which does not have impressed thereon and affixed thereto the personal signature and seal of a registered professional land surveyor by whom the map, plat, survey, or other document was prepared.

Source:

S.L. 1967, ch. 352, § 30; 2001, ch. 120, § 1; 2009, ch. 368, § 29.

Cross-References.

Registers of deeds [now recorders], see N.D.C.C. ch. 11-18.

43-19.1-31. Violation and penalties.

Any person that practices or offers to practice engineering or land surveying in this state without being registered in accordance with the provisions of this chapter; any person using or employing the words “engineer”, “engineering”, “professional engineer”, “surveyor”, “land surveyor”, “professional land surveyor”, or any modification or derivative of these terms in that person’s name, form of business, or activity, except as authorized in this chapter; any person presenting or attempting to use the certificate of registration or the seal of another; any person giving any false or forged evidence of any kind to the board or to any member of the board in obtaining or attempting to obtain a certificate of registration; or any person falsely impersonating any other registrant of like or different name; any person attempting to use an expired or revoked or nonexistent certificate of registration practicing or offering to practice when not qualified; any person falsely claiming that person is registered under this chapter; or any person violating any of the provisions of this chapter is guilty of a class B misdemeanor. It is the duty of all duly constituted officers of the state, and of all political subdivisions of the state, to enforce the provisions of this chapter.

Source:

S.L. 1967, ch. 352, § 31; 1975, ch. 106, § 490; 2009, ch. 368, § 30.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-19.1-32. Duty of attorney general — Legal counsel.

The attorney general of the state or the attorney general’s assistant shall act as legal adviser to the board and render such legal assistance as may be necessary in carrying out the provisions of this chapter. The board may employ other counsel and necessary assistance to aid in the enforcement or administration of this chapter, and the compensation and expenses therefor must be paid from funds of the board.

Source:

S.L. 1967, ch. 352, § 32.

43-19.1-33. Continuing professional education — Rules.

The board shall adopt rules to establish continuing education requirements for professional engineers and land surveyors. Compliance with these rules must be documented at the times, and in the manner, as is required by the board. A professional engineer or land surveyor who is exempt under subsection 4 of section 43-19.1-29 but who has voluntarily registered under this chapter is exempt from the continuing professional education requirements under this section.

Source:

S.L. 2003, ch. 363, § 5; 2009, ch. 368, § 31.

CHAPTER 43-20 Dental Hygienists and Assistants

43-20-01. Name of chapter. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-20-01.1. Definitions.

As used in this chapter and chapter 43-28, unless the context otherwise requires:

  1. “Dental assistant” means an individual who provides dental assistance under the supervision of a dentist and within the scope of practice established by rule and section 43-20-13.
  2. “Dental hygienist” means an individual licensed to practice dental hygiene.
  3. “Qualified dental assistant” means an individual registered as a qualified dental assistant to provide dental assistance as established by rule.
  4. “Registered dental assistant” means an individual registered as a registered dental assistant to provide dental assistance as established by rule.

Source:

S.L. 2009, ch. 369, § 1.

43-20-01.2. Dental hygienist licensing.

An individual seeking to practice dental hygiene in this state shall apply to the executive director of the board on forms prescribed by the board. The application must be verified under oath to the effect that all of the statements contained in the application are true to the applicant’s own knowledge, and must be received by the executive director of the board at least thirty days before the board meeting at which the application is considered. The applicant shall enclose with the application a recent autographed picture of the applicant and an application fee established by the board by rule. The board may grant a license to practice dental hygiene to an applicant who has met all of the following requirements:

  1. The applicant is a graduate of a dental hygiene school accredited by the American dental association’s commission on dental accreditation.
  2. The applicant has passed an examination administered by the joint commission on national dental examinations.
  3. The applicant has passed a clinical competency examination administered by a regional dental testing service or a licensing jurisdiction approved by the board by rule.
  4. The applicant has passed, within one year of making application, a written examination on the laws and rules governing the practice of dentistry in this state.
  5. Grounds for denial of the application under section 43-20-05 do not exist.
  6. The applicant has met any requirement for licensure established by the board by rule.

Source:

S.L. 2009, ch. 369, § 2.

43-20-01.3. Licensure by credential review.

Applications for licensure to practice dental hygiene by credential review must be made on forms provided by the board and submitted thirty days before the examination administered by the board. The board may issue a license and certificate of registration to practice dental hygiene to an applicant who meets all of the following requirements:

  1. The applicant, for at least three years immediately preceding application, has been licensed in good standing and has been actively practicing dental hygiene in another jurisdiction where the requirements are at least substantially equivalent to those of this state.
  2. Grounds for denial of the application under section 43-20-05 do not exist.
  3. The applicant has paid to the board the fee established by the board by rule.
  4. The applicant has delivered to the board a certificate from the examining or licensing board of every jurisdiction in which the individual is licensed to practice, certifying that the individual is a licensed and registered dental hygienist in good standing in that jurisdiction.
  5. The applicant has passed a written examination on the laws and rules governing the practice of dentistry in this state administered by the board at a meeting.
  6. The applicant has met any requirement for licensure established by the board by rule.

Source:

S.L. 2009, ch. 369, § 3.

43-20-01.4. License renewal — Audit.

  1. Dental hygienist licenses expire on December thirty-first of every odd-numbered year.
  2. Licenses may be renewed by December thirty-first of the odd-numbered year by submitting a renewal application, a renewal fee established by the board by rule, and proof of completion of the continuing education requirements established by the board by rule, provided the dental hygienist’s license is not revoked or grounds for denial under section 43-20-05 do not exist.
  3. If the renewal application, renewal fee, and proof of completion of continuing education are not received by December thirty-first of the odd-numbered year, the license expires and the dental hygienist may not practice dental hygiene.
  4. Within sixty days after December thirty-first of the odd-numbered year, an expired license may be renewed by submitting the renewal application, renewal fee, proof of completion of continuing education, and a late fee established by the board by rule.
  5. If the renewal application, renewal fee, proof of completion of continuing education, and late fee are not received within sixty days after December thirty-first of the odd-numbered year, the license may not be renewed, and the dental hygienist must apply for and meet the requirements for licensure to be granted a license.
  6. The board may extend the renewal deadlines for a dental hygienist providing proof of medical or other hardship rendering the dental hygienist unable to meet the deadline.
  7. The board may audit continuing education credits. Each licensee shall maintain certificates or records of continuing education activities for three years. Upon receiving notice of an audit from the board, a licensee shall provide satisfactory documentation of attendance at, or participation in, the continuing education activities listed on the licensee’s continuing education form. Failure to comply with the audit is grounds for nonrenewal of or disciplinary action against the license.

Source:

S.L. 2009, ch. 369, § 4; 2013, ch. 328, § 1.

43-20-02. Dental hygienists — Qualifications — Examinations — Registration and license. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-20-02.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a dental hygienist, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 37.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-20-03. Dental hygienists — Practice by.

As used in this chapter, “dental hygiene” and the practice thereof means the removal of accumulated matter from the natural and restored surfaces of teeth and from restorations in the human mouth, the polishing of such surfaces, and the topical application of drugs to the surface tissues of the mouth and to the surface of teeth if such acts are performed under the direct, indirect, or general supervision of a licensed dentist. General supervision may be used if the procedures are authorized in advance by the supervising dentist, except procedures which may only be used under direct supervision as established by the board by rule.

Only a person licensed as a dental hygienist may be referred to as a dental hygienist. Additional tasks permitted to be performed by licensed dental hygienists may be outlined by the board of dental examiners by appropriate rules.

Source:

S.L. 1947, ch. 298, § 3; R.C. 1943, 1957 Supp., § 43-2003; S.L. 1967, ch. 353, § 2; 1971, ch. 440, § 2; 1993, ch. 431, § 2; 1995, ch. 409, § 1; 2001, ch. 380, § 2; 2009, ch. 369, § 5; 2013, ch. 328, § 2.

Cross-References.

Misdemeanors relating to unlicensed and unregistered persons, see N.D.C.C. § 43-28-25.

43-20-04. License recorded — Fee. [Repealed]

Repealed by S.L. 1991, ch. 465, § 23.

43-20-05. Licenses and registrations — Denial and discipline.

The board may deny an application for or take disciplinary action against a dental hygienist’s license or a registered or qualified dental assistant’s registration, upon any one or more of the following grounds:

  1. Gross immorality or unprofessional conduct, which includes knowingly failing to comply with commonly accepted national infection control guidelines and standards.
  2. Failure, neglect, or refusal to renew a license biennially.
  3. Nonobservance or violation of this chapter, or of any board rule adopted under this chapter.
  4. Gross incompetency in the practice of dental hygiene.
  5. Conviction of an offense determined by the board to have a direct bearing on the individual’s ability to serve the public as a dental hygienist or a registered or qualified dental assistant, or the board determines, following conviction for any offense, that the individual is not sufficiently rehabilitated under section 12.1-33-02.1.
  6. Been adjudged mentally ill and not judicially restored by the regularly constituted authorities.
  7. Abused, is dependent on, or addicted to the use of alcohol or drugs.
  8. Engaged in fraud or deceit in obtaining a dental hygiene license or dental assisting registration.
  9. Disclosed confidential information.
  10. Received a fee for the referral of patients to a dentist or dental hygienist.
  11. Used unethical measures to draw dental patronage from the practice of another licensee.
  12. Fraudulently prescribed or dispensed drugs or medications.
  13. Knowingly submitted misleading, deceptive, untrue, or fraudulent information on a claim form, bill, or statement to a third party.
  14. Advised or directed patients to dental laboratories or dental laboratory technicians for a dental service or advised or directed patients to deal directly with laboratories or dental laboratory technicians.
  15. Violated the code of ethics adopted by the board by rule.
  16. Had a registration or license suspended, revoked, or disciplined in another jurisdiction.
  17. Failed to report to the board in writing within sixty days a violation of this chapter or chapter 43-28.
  18. Practiced outside the scope of practice established by the board by rules and this chapter.

The procedure to be followed for taking disciplinary action must be the same as the procedure required by section 43-28-18.2.

Source:

S.L. 1947, ch. 298, § 5; R.C. 1943, 1957 Supp., § 43-2005; 1993, ch. 431, § 3; 2005, ch. 361, § 1; 2009, ch. 369, § 6.

Cross-References.

Misdemeanors relating to unlicensed and unregistered persons, see N.D.C.C. § 43-28-25.

Collateral References.

Dental hygienists, constitutionality, construction, and application of statute regulating, 11 A.L.R.2d 724.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

43-20-06. Inactive status.

Upon payment of a fee determined by the board, a dental hygienist may request to have the dental hygienist’s license placed on inactive status. While on inactive status, the dental hygienist may not engage in the practice of dental hygiene in the state until the dental hygienist submits a renewal application, pays the renewal fee, and meets any additional requirements established by rule.

Source:

S.L. 1947, ch. 298, § 6; R.C. 1943, 1957 Supp., § 43-2006; S.L. 1967, ch. 353, § 4; 1979, ch. 468, § 1; 1981, ch. 445, § 2; 1985, ch. 484, § 1; 1991, ch. 465, § 2; 2001, ch. 380, § 3; 2005, ch. 361, § 2; 2009, ch. 369, § 7.

43-20-07. Licensure by credential review. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-20-08. Unlawful to practice without license or registration.

A person may not practice dental hygiene or practice as a registered or qualified dental assistant in the state, without first obtaining from the board a license or registration. A person may not practice as a dental assistant outside the scope of practice established by the board by rule and section 43-20-13.

Source:

S.L. 1947, ch. 298, § 8; R.C. 1943, 1957 Supp., § 43-2008; 2009, ch. 369, § 8.

43-20-09. Violation a misdemeanor.

A person violating section 43-20-08 is guilty of a class B misdemeanor.

Source:

S.L. 1947, ch. 298, § 9; R.C. 1943, 1957 Supp., § 43-2009; S.L. 1975, ch. 106, § 491; 2009, ch. 369, § 9.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Class A misdemeanors relating to unlicensed and unregistered persons, see N.D.C.C. § 43-28-25.

43-20-10. State board of dental examiners — Authority — Duty.

The board has the power and it is its duty to enforce the provisions of this chapter. The board has the power to make such rules and regulations, not inconsistent with this chapter, as may, in its judgment, be necessary for the proper enforcement of this chapter, and the examination of dental hygienists and registered and qualified dental assistants for their conduct and practice. For purposes of this chapter, the board has the powers set forth in section 43-28-06.

Source:

S.L. 1947, ch. 298, § 10; R.C. 1943, 1957 Supp., § 43-2010; S.L. 1985, ch. 484, § 3; 2009, ch. 369, § 10.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-20-11. Practice of dental hygiene supplemental to practice of dentistry.

The practice of dental hygiene is hereby declared to be supplemental and auxiliary to the practice of dentistry in North Dakota. All particulars, requirements, regulations, control, and provisions of chapter 43-28 apply with equal force wherein and so far as they may be applicable to the practice of dental hygienists, except as otherwise provided for in this chapter.

Source:

S.L. 1947, ch. 298, § 11; R.C. 1943, 1957 Supp., § 43-2011.

43-20-12. Dental hygienist — Scope of permitted practice.

A licensed dentist may delegate to a competent dental hygienist those procedures over which the dentist exercises full responsibility, except those procedures that require professional judgment and skill such as diagnosis and treatment planning, the cutting of hard or soft tissue, or any intraoral procedure which would lead to the fabrication of any appliance that, when worn by the patient, would come in direct contact with hard or soft tissue and which could result in tissue irritation or injury. The board of dental examiners may adopt rules governing the scope of practice of dental hygienists.

Source:

S.L. 1971, ch. 440, § 3; 1985, ch. 484, § 4; 1993, ch. 431, § 5; 1995, ch. 409, § 3; 2001, ch. 380, § 5; 2005, ch. 361, § 3.

43-20-12.1. Continuing educational requirement for dental hygienists. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-20-12.2. Notice to board of change of address.

A licensed dental hygienist, registered dental assistant, or qualified dental assistant shall notify the executive director of the board of dental examiners of any new address within thirty days of the address change. The notice required under this section must be given by certified mail, return receipt requested. A licensed dental hygienist, registered dental assistant, or qualified dental assistant may not practice in this state for more than thirty days after the change of address without complying with this section.

Source:

S.L. 1985, ch. 484, § 5; 1991, ch. 465, § 5; 2007, ch. 374, § 2; 2009, ch. 369, § 11.

43-20-12.3. Supervised administration of anesthesia — Board rules.

A licensed dentist may delegate to a dental hygienist licensed by the board the administration of block and infiltration anesthesia to a patient who is at least eighteen years old. The dental hygienist must be under the direct supervision of a dentist and the dental hygienist must complete the educational requirements as required by the commission on dental accreditation and approved by the board. The board shall adopt rules to implement this section.

Source:

S.L. 2003, ch. 365, § 1.

43-20-13. Dental assistant — Scope of permitted practice.

A dental assistant is an auxiliary to the practice of dentistry. To the extent applicable and to the extent they are not inconsistent with this chapter, the requirements and rules adopted by the board of dental examiners under chapter 43-28 apply to the practice of dental assistants. A dentist may delegate to a dental assistant who is under that dentist’s direct, indirect, or general supervision procedures over which the dentist exercises full responsibility as provided by rules adopted by the board of dental examiners.

Source:

S.L. 2005, ch. 361, § 5; 2007, ch. 374, § 3.

43-20-13.1. Registration renewal.

  1. All registrations of registered and qualified dental assistants expire on December thirty-first of every even-numbered year.
  2. A registration may be renewed by submitting a renewal application, renewal fee established by the board by rule, and proof of completion of the continuing education requirements established by the board by rule, provided the registration is not revoked or grounds for denial under section 43-20-05 do not exist.
  3. If the renewal application, renewal fee, and proof of completion of continuing education are not received by December thirty-first of the even-numbered year, the registration expires and the registered or qualified dental assistant may not practice as a registered or qualified dental assistant.
  4. Within sixty days after December thirty-first of the even-numbered year, an expired registration may be renewed by submitting the renewal application, renewal fee, proof of completion of continuing education, and a late fee established by the board by rule.
  5. If the renewal application, renewal fee, proof of completion of continuing education, and late fee are not received within sixty days after December thirty-first of the even-numbered year, the registration may not be renewed, and the registered or qualified dental assistant must apply for and meet the requirements for registration to be granted registration.
  6. The board may extend the renewal deadline for a registered or qualified dental assistant providing proof of medical or other hardship rendering the registered or qualified dental assistant unable to meet the deadline.

Source:

S.L. 2005, ch. 361, § 6; 2007, ch. 374, § 4; 2009, ch. 369, § 13.

43-20-13.2. Registered and qualified dental assistant registration.

To be registered as a registered or qualified dental assistant, an individual shall apply and meet the requirements established by the board by rule.

Source:

S.L. 2009, ch. 369, § 12.

CHAPTER 43-21 Practical Nurses [Repealed]

[Repealed by S.L. 1971, ch. 510, § 15; S.L. 1977, ch. 400, § 4]

CHAPTER 43-22 Oil and Gas Brokers [Repealed]

[Repealed by S.L. 1981, ch. 446, § 1]

CHAPTER 43-23 State Real Estate Commission

43-23-01. Real estate commission — Members.

The state real estate commission consists of five members, three of whom must be active real estate brokers, appointed by the governor. The commission shall organize by the election of a chairman.

Source:

S.L. 1957, ch. 293, § 1; R.C. 1943, 1957 Supp., § 43-2301; S.L. 1967, ch. 354, § 1.

Notes to Decisions

Administrative Agency.

The North Dakota Real Estate Commission is an administrative agency subject to the Administrative Agencies Practice Act, chapter 28-32. North Dakota Real Estate Comm'n v. Allen, 271 N.W.2d 593, 1978 N.D. LEXIS 177 (N.D. 1978).

43-23-02. Commission — Term — Duties — Records.

The governor shall appoint each member of the commission for a term of five years. Terms must be staggered so the term of one member expires each year. At the expiration of the term of any member of the commission, the governor shall appoint a successor for a term of five years. A commissioner may not serve more than two consecutive five-year terms. In the event of a vacancy on the commission for any reason the governor shall appoint a member for the unexpired term of that member.

A majority of the commission, in a duly assembled meeting, may perform and exercise all of the duties and powers devolving on the commission. The commission may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1957, ch. 293, § 2; R.C. 1943, 1957 Supp., § 43-2302; S.L. 1963, ch. 346, § 45; 1973, ch. 403, § 34; 1975, ch. 466, § 36; 1995, ch. 350, § 35; 2017, ch. 290, § 1, effective August 1, 2017; 2021, ch. 316, § 1, effective August 1, 2021.

Note.

Section 2 of chapter 290, S.L. 2017 provides, “ APPLICATION. This Act applies to state real estate commission appointments of members which take place after July 31, 2017. This Act does not invalidate the current term of a member serving on the commission on August 1, 2017."

43-23-03. Commission office — Executive director.

The commission shall employ an executive director who shall furnish bond as required by the commission and who shall keep a record of all proceedings, transactions, communications, and official acts of the commission, and who is custodian of all moneys received for licenses which the executive director, shall deposit for safekeeping in depositories designated by the commission. The executive director is the custodian of all records of the commission and shall perform such other duties as the commission may require. The commission may fix the salary of the executive director, employ other employees as may be necessary to properly carry out the provisions of this chapter, fix salaries and prescribe duties of employees, and make other expenditures as necessary to carry out the provisions of this chapter. The commission shall meet annually and upon call by the executive director upon a written request of three or more members of the commission. The location of the office of the executive director must be at such places within the state as the commission may designate. The commission shall maintain all files, records, and property of the commission at the office of the executive director.

Source:

S.L. 1957, ch. 293, § 3; R.C. 1943, 1957 Supp., § 43-2303; 2007, ch. 370, § 1; 2021, ch. 316, § 2, effective August 1, 2021.

43-23-04. Commission — Compensation.

The members of the commission are entitled to receive per diem, not to exceed the daily compensation rate a member of the legislative assembly is entitled to receive under section 54-35-10 for attendance at a legislative management committee meeting, as determined by the commission in the annual budget process, for each day actually engaged in the service of the commission and to be paid actual and necessary traveling expenses to be paid only from the fund derived from fees collected in the administration of this chapter. All moneys or fees collected or received by the commission must be deposited and disbursed in accordance with section 54-44-12.

Source:

S.L. 1957, ch. 293, § 4; R.C. 1943, 1957 Supp., § 43-2304; S.L. 1967, ch. 354, § 2; 1971, ch. 510, § 11; 1981, ch. 447, § 1; 2021, ch. 316, § 3, effective August 1, 2021.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-23-05. Real estate license required.

A person may not act as a real estate broker or real estate salesperson, or advertise or assume to act as a real estate broker or real estate salesperson, without a license issued by the real estate commission. A person is not entitled to collect any fees, compensation, or commission as a real estate broker or real estate salesperson without having first complied with the provisions of this chapter. A copartnership, association, corporation, or limited liability company may not be granted a license, unless at least one partner, shareholder, member, manager, or officer of the copartnership, association, corporation, or limited liability company, actually engaged as a real estate broker, holds a license as a real estate broker, and unless every employee who acts as a real estate salesperson for the copartnership, association, corporation, or limited liability company holds a license as a real estate salesperson.

Source:

S.L. 1957, ch. 293, § 5; R.C. 1943, 1957 Supp., § 43-2305; S.L. 1967, ch. 355, § 1; 1981, ch. 448, § 1; 1991, ch. 466, § 1; 1993, ch. 54, § 106; 1995, ch. 410, § 2; 2021, ch. 316, § 4, effective August 1, 2021.

Notes to Decisions

In General.

Under North Dakota law, persons selling real estate must be licensed. In re Disciplinary Action Against Larson, 485 N.W.2d 345, 1992 N.D. LEXIS 100 (N.D. 1992).

Collateral References.

Validity of statute or ordinance requiring real estate brokers to procure license, 39 A.L.R.2d 606.

Right of attorney, as such, to act or become licensed to act as real-estate broker, 23 A.L.R.4th 230.

43-23-05.1. Organization of salesperson, broker, or broker associate permitted to be licensed — Fees.

  1. The commission may license an organization of a salesperson, broker, or broker associate if:
    1. The organization is owned solely by an individual who is licensed as a salesperson, broker, or broker associate, or by that individual and that individual’s spouse, or by that individual and other salespersons, brokers, and broker associates within the same firm as that individual;
    2. The organization does not engage in any real estate transactions as a third-party agent or in any other capacity requiring a license under this chapter; and
    3. The organization does not advertise or otherwise portray to the public the organization is a real estate broker or real estate brokerage firm.
  2. The employing or associating broker of a salesperson, broker, or broker associate who is part of an organization is not relieved of any obligation to supervise the employed or associated salesperson, broker, or broker associate or of any other requirements under this chapter.
  3. An individual who forms an organization is not by nature of that act relieved of any personal liability for licensed activities.
  4. The commission may adopt rules establishing a one-time license fee for an organization licensed as a salesperson, broker, or broker associate.

Source:

S.L. 2005, ch. 362, § 1; 2007, ch. 370, § 2; 2019, ch. 359, § 1, effective August 1, 2019.

43-23-06. Definitions. [Repealed]

Repealed by S.L. 1977, ch. 405, § 2.

43-23-06.1. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Appointed agent” means a licensee appointed by a designated broker of the licensee’s real estate brokerage firm to act solely for a client of that brokerage firm to the exclusion of other licensees of that brokerage firm.
  2. “Client” means a person that has entered a written agency agreement with a real estate brokerage firm.
  3. “Commission” means the North Dakota real estate commission.
  4. “Customer” means a buyer, prospective buyer, seller, lessee, or lessor that is not represented by that real estate brokerage firm in a real property transaction.
  5. “Designated broker” means a licensee designated by a real estate brokerage firm to act on behalf of the brokerage firm.
  6. “Dual agency” means a situation in which a real estate brokerage firm or the real estate brokerage firm’s licensees owe a duty to more than one party in a real estate transaction. Dual agency is established only as follows:
    1. When one licensee represents both the buyer and the seller in a real estate transaction; or
    2. When two or more licensees, licensed to the same broker, each represents a party to the real estate transaction.
  7. “Licensee” means a real estate broker, an associate real estate broker, or a real estate salesperson who is associated with a real estate brokerage firm.
  8. “Real estate”, “real property”, “realty”, or words of like import, means any interest or estate in land, including leaseholds, whether such interest or estate is corporeal, incorporeal, freehold, or nonfreehold, and whether situated in this state or elsewhere; provided, however, that the meaning as used in this chapter does not include oil, gas, or mineral leases, nor does it include any other mineral leasehold, mineral estate, or mineral interest of any nature whatsoever.
  9. “Real estate broker”, or “broker”, means any person that, for another, for a fee, commission, salary, or other consideration, or with the intention or expectation of receiving or collecting such compensation from another, engages in or offers or attempts to engage in, either directly or indirectly by a continuing course of conduct or by a single act or transaction, any of the following acts:
    1. Lists, offers, attempts, or agrees to list real estate or any interest in that real estate, or any improvements affixed on that real estate for sale, exchange, or lease.
    2. Sells, exchanges, purchases, or leases real estate or any interest in that real estate, or any improvements affixed on that real estate.
    3. Offers to sell, exchange, purchase, or lease real estate or any interest in that real estate, or any improvements affixed on that real estate.
    4. Negotiates or offers, attempts, or agrees to negotiate the sale, exchange, purchase, or leasing of real estate or any interest in that real estate, or any improvements affixed on that real estate.
    5. Buys, sells, offers to buy or sell, or otherwise deals in options on real estate or any interest in that real estate, or any improvements on that real estate.
    6. Who is a licensee under this chapter and performs any of the acts set out in this subsection while acting in the licensee’s own behalf.
    7. Advertises or holds out as being engaged in the business of buying, selling, exchanging, or leasing of real estate or any interest in that real estate, or any improvements on that real estate.
    8. Assists or directs in the procuring of prospects, calculated to result in the sale, exchange, or leasing of real estate or any interest in that real estate, or any improvements on that real estate.
  10. “Real estate brokerage firm” means a person that is providing real estate brokerage services through that person’s licensees and which is licensed by the commission as a real estate brokerage firm.
  11. “Real estate salesperson” means any person that for a fee, compensation, salary, or other consideration, or in the expectation or upon the promise of that compensation, is employed or engaged by a licensed real estate broker to do any act or deal in any transaction as provided in subsection 6 for or on behalf of such licensed real estate broker.

“Dual agency” does not exist unless both the seller and the buyer in a real estate transaction have written agency agreements with the same real estate brokerage firm. For purposes of “dual agency” a subagency arrangement is not a written agency agreement.

Source:

S.L. 1977, ch. 405, § 1; 1991, ch. 466, § 2; 1993, ch. 54, § 106; 1995, ch. 410, § 3; 1995, ch. 411, § 2; 2011, ch. 316, § 1.

Notes to Decisions

Implicit Contractual Relationship.

Implicit in a description such as in subsection (5) (now (9)) is an underlying contractual relationship between a broker and a seller. Coldwell Banker First Realty v. Kane, 491 N.W.2d 716, 1992 N.D. LEXIS 220 (N.D. 1992).

Collateral References.

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90, 129.

43-23-07. Real estate brokers and salespersons — Exceptions.

The term “real estate broker” or “real estate salesperson” does not include:

  1. Any person, partnership, association, corporation, or limited liability company who is a bona fide owner or lessor or who accepts or markets leasehold interests in residential or agricultural property and performs any of the aforesaid acts with reference to property owned or leased by them, nor does it apply to regular employees thereof, when the acts are performed in the regular course of or as an incident to the management of the property and the investment therein.
  2. An attorney at law, admitted to practice in this state, handling sales of real estate in the course of estate or guardianship administration in district court, or trust administration, bankruptcy proceedings, receiverships, or like actions subject to approval by a court of competent jurisdiction, or sales of real estate arising in the usual course of the practice of law.
  3. Any person selling real estate as an auctioneer, provided the sale is advertised as a bona fide public auction.
  4. Any bank or trust company or any of its officers or employees in the performance of their duties as an officer or employee of the bank or trust company.
  5. Any person holding in good faith a duly executed power of attorney from the owner, authorizing a final consummation and execution for the sale, purchase, lease, or exchange of real estate when such acts are not of a recurrent nature and done with the intention of evading this section.
  6. Any person while acting as a receiver, trustee, administrator, executor, guardian, or under court order, or while acting under authority of a deed, trust, or will.
  7. Public officers while performing their duties.

Source:

S.L. 1957, ch. 293, § 7; R.C. 1943, 1957 Supp., § 43-2307; S.L. 1967, ch. 354, § 3; 1967, ch. 355, § 3; 1987, ch. 530, § 1; 1991, ch. 466, § 3; 1991, ch. 326, § 163; 1993, ch. 54, § 106; 1995, ch. 410, § 4.

Notes to Decisions

Attorney at Law.

There is a statutory exception to the licensing requirement for persons selling real estate where the sales arise in the usual course of the practice of law. In re Disciplinary Action Against Larson, 485 N.W.2d 345, 1992 N.D. LEXIS 100 (N.D. 1992).

Collateral References.

Right of attorney, as such, to act or become licensed to act as real estate broker, 23 A.L.R.4th 230.

43-23-08. License standards.

  1. Licenses and license renewals may be granted only to persons who bear a good reputation for honesty, truthfulness, and fair dealing and who are competent to transact the business of a real estate broker or a real estate salesperson in such manner as to safeguard the interest of the public, and whose real estate license has not been revoked in this or any other state within two years before the date of application. To determine the competency of applicants, the commission shall prescribe and hold examinations at designated times and places.
  2. In addition to the requirements established by subsection 1, an applicant for a broker’s or salesperson’s license must be at least eighteen years of age.
  3. Every applicant for a license as a real estate broker:
    1. Must have been actively engaged as a licensed real estate salesperson for a period of at least two years preceding the date of application; or
    2. Must have had experience as determined by the commission to be substantially equal to that which a licensed real estate salesperson would ordinarily receive during a period of two years.
  4. As a prerequisite for licensure, an applicant for a salesperson’s license shall furnish to the commission evidence the applicant has successfully completed at least ninety hours in courses of study approved by the commission. An applicant for a broker’s license must have successfully completed an additional sixty hours in courses of study approved by the commission. An applicant for a salesperson’s license may take the licensing examination before fulfillment of the prerequisite educational requirement; however, the commission may not issue a salesperson’s license to an applicant unless satisfactory evidence of completion of this prerequisite educational requirement is furnished to the commission. An applicant for a broker’s license must have satisfactorily fulfilled the educational requirement before taking the broker’s licensing examination.
  5. If the commission finds an applicant could not acquire employment as a licensed real estate salesperson because of conditions existing in the area where the salesperson resides, the experience requirements established in subdivisions a and b of subsection 3 may be waived by the commission. The educational requirements of subsection 4 may not be waived by the commission, but guidelines may be established by which applicants who have engaged in certain educational courses of study which are closely related to the real estate profession may be deemed to have satisfied this requirement.
  6. The commission may adopt reasonable rules and regulations pursuant to the provisions of chapter 28-32 relative to procedures for licensing, approval of coursework, and for the type of certification or proof of coursework completion that must be submitted.

Source:

S.L. 1957, ch. 293, § 8; R.C. 1943, 1957 Supp., § 43-2308; S.L. 1967, ch. 354, § 4; 1967, ch. 355, § 4; 1973, ch. 356, § 1; 1977, ch. 406, § 1; 1979, ch. 469, § 1; 1981, ch. 435, § 10; 1981, ch. 447, § 2; 1991, ch. 466, § 4; 1991, ch. 467, § 1993, ch. 432, § 1; 1995, ch. 410, § 5; 2005, ch. 363, § 1; 2019, ch. 360, § 1, effective January 1, 2021; 2021, ch. 316, § 5, effective August 1, 2021.

Notes to Decisions

Revocation and Nonrenewal of License.

This section provides no basis for revocation of a license, but does provide a basis for nonrenewal of a license, for failure of a person to exhibit the required reputation traits for truthfulness, honesty, and fair dealing. North Dakota Real Estate Comm'n v. Allen, 271 N.W.2d 593, 1978 N.D. LEXIS 177 (N.D. 1978).

Collateral References.

Real-estate brokers: statute or regulation forbidding use of prizes, gifts, or premiums as inducement to secure customers, 62 A.L.R.4th 1044.

43-23-08.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the commission determines that the offense has a direct bearing upon a person’s ability to serve the public as a real estate broker or salesperson, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 40; 1991, ch. 466, § 5.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-23-08.2. License renewal — Continuing education required.

  1. The commission may establish the conditions under which each applicant for renewal of a broker’s or salesperson’s license, in addition to the requirements of section 43-23-08, shall submit proof of participation in approved continuing education. In establishing the conditions for continuing education, the commission may determine the required number of hours, the frequency and conditions of reporting requirements, and all other terms and conditions of continuing education compliance. The commission shall set standards for the approval of education courses that qualify for satisfaction of this requirement, and shall maintain a current list of education courses so approved. Attendance at a course or the completion of an education course must be documented in accordance with procedures established by the commission. The commission may adopt rules concerning implementation of this section pursuant to chapter 28-32.
  2. A license may not be renewed by the commission unless the proper certification showing fulfillment of the continuing education requirements of this section and the appropriate licensing fees are submitted to the commission in accordance with section 43-23-13.1.
  3. The commission may exempt licensees from the continuing education requirements of this section for reasons relating to the licensee’s health, military service, or for other good cause. Licensees who have held a real estate license for fifteen continuous years on January 1, 1984, are exempt from the requirements of this section.

Source:

S.L. 1981, ch. 449, § 1; 1985, ch. 485, § 1; 1991, ch. 466, § 6; 1991, ch. 468, § 1; 1999, ch. 382, § 1; 2009, ch. 370, § 1; 2021, ch. 316, § 6, effective August 1, 2021.

43-23-08.3. Disclosure of sexual offenders.

A licensee is not liable for any action resulting from any disclosure or nondisclosure relating to the registration of sexual offenders under section 12.1-32-15.

Source:

S.L. 1999, ch. 383, § 1.

43-23-08.4. Criminal history record checks.

The commission may require an applicant for licensure or a licensee whose licensure is subject to investigation by the commission to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or licensee.

Source:

S.L. 2007, ch. 115, § 11.

43-23-09. License application.

Every application for a real estate broker’s license or a real estate salesperson’s license must contain such data and information as the commission may require.

Source:

S.L. 1957, ch. 293, § 9; R.C. 1943, 1957 Supp., § 43-2309; S.L. 1967, ch. 355, § 5; 1975, ch. 409, § 14; 1991, ch. 466, § 7; 1995, ch. 410, § 6; 2021, ch. 316, § 7, effective August 1, 2021.

43-23-10. Nonresident brokers — Reciprocity — Consent to service.

A nonresident broker regularly engaged in the real estate business as a vocation and who maintains a definite place of business and is licensed in another state may not be required to maintain a place of business within this state. The commission shall recognize the license issued to a real estate broker by another state as satisfactorily qualifying the nonresident broker for license as a broker; provided, the nonresident broker has qualified for license in the broker’s own state. Every nonresident applicant shall file an irrevocable consent that suits and actions may be commenced against the applicant in the proper court of any county of the state in which a claim for relief may arise, in which the plaintiff may reside, by the service of any process or pleading authorized by the laws of this state, on any member of the commission, or the executive director, the consent stipulating and agreeing service of the process or pleading is taken and held in all courts to be as valid and binding as if due service had been made upon the applicant in this state. The consent must be duly acknowledged. Any service of process or pleading must be by duplicate copies, one of which must be filed in the office of the commission and the other immediately forwarded by registered mail to the last-known main office of the applicant against whom the process or pleading is directed, and no default in the proceedings or action may be taken except upon affidavit or certificate of the commission or the executive director, that a copy of the process or pleading was mailed to the defendant as required under this section, and judgment by default may not be taken in any such action or proceeding until after thirty days from the date of mailing of the process or pleading to the nonresident defendant.

Source:

S.L. 1957, ch. 293, § 10; R.C. 1943, 1957 Supp., § 43-2310; S.L. 1967, ch. 355, § 6; 1973, ch. 80, § 18; 1985, ch. 82, § 111; 1995, ch. 410, § 7; 2007, ch. 370, § 3; 2021, ch. 316, § 8, effective August 1, 2021.

43-23-11. License refusal, revocation — Hearing — Appeal. [Repealed]

Repealed by S.L. 1973, ch. 357, § 2.

43-23-11.1. Investigations, grounds for refusal, suspension or revocation of license — Hearing — Appeal.

  1. The commission upon its own motion may investigate, and upon the verified complaint in writing of any person, shall investigate the activities of any licensee or any person that assumes to act in such capacity within the state, and has the power to suspend or revoke a license, impose a monetary fine and actual costs incurred by the commission in the investigation and prosecution of the complaint, require course attendance, or issue a letter of reprimand, or any combination thereof, if the licensee, in performing or attempting to perform any of the acts included within the scope of this chapter, has performed one or more of the following:
    1. Making a material false statement in the licensee’s application for a license or in any information furnished to the commission.
    2. Making any substantial and willful misrepresentation with reference to a real estate transaction which is injurious to any party.
    3. Making any false promise of a character such as to influence, persuade, or induce a party to a real estate transaction to that person’s injury or damage.
    4. Acting for more than one party in a transaction without the knowledge and consent of all parties to that transaction for whom the licensee acts.
    5. Failing to account for or to remit, within a reasonable time, any moneys coming into the licensee’s possession belonging to others; commingling funds of others with the licensee’s own, failing to keep such funds of others in an escrow or trust account with a bank or other recognized depository in this state, or keeping records relative to the deposit, which must contain such information as may be prescribed by the rules and regulations of the commission relative thereto.
    6. Being convicted or pleading guilty or nolo contendere before any court of any felony, or of a misdemeanor involving theft, forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud, or other similar offense. A certified copy of the record of conviction is conclusive evidence of conviction in such cases.
    7. Claiming or taking of any secret or undisclosed amount of compensation or commission or the failure of a licensee to reveal to the licensee’s principal or employer the full amount of the licensee’s compensation or commission in connection with any acts for which a license is required under this chapter.
    8. Failing or refusing upon demand to produce any document, book, or record in the licensee’s possession or under that person’s control, concerning any real estate transaction under investigation by the commission.
    9. Offering real property for sale or lease without the knowledge and consent of the owner or the owner’s authorized agent or on any terms other than those authorized by the owner or agent.
    10. Refusing, because of race, color, national origin, religion, sex, age, physical or mental disability, or status with respect to marriage or public assistance to show, sell, lease, or rent any real estate to prospective renters, lessees, or purchasers.
    11. Failing or refusing upon demand to furnish copies of any document pertaining to any transaction dealing with real estate to any person whose signature is affixed to the document.
    12. Paying compensation or commission in connection with any real estate sale, lease, or other transaction to any person that is not licensed as a real estate broker or real estate salesperson under this chapter.
    13. Failing to disclose to an owner the licensee’s intention or true position if the licensee directly or indirectly through a third party purchases for the licensee or acquires or intends to acquire any interest in or any option to purchase property that has been listed with the licensee’s office for sale or lease.
    14. Failing to include a fixed date of expiration in any written listing agreement and failing to leave a copy of the agreement with the principal.
    15. A broker failing to deliver to the party or parties represented by the broker a complete detailed closing statement in every real estate transaction, at the time the transaction is consummated, showing all of the receipts and disbursements handled by the broker for the party or parties represented by the broker, and to retain true copies of the statements in the broker’s files.
    16. Violating any provisions of this chapter or rule or regulation adopted by the commission.
    17. Accepting a commission or valuable consideration as a real estate salesperson for the performance of any of the acts specified in this chapter, or by rule or regulation of the commission, from any person except the licensed real estate broker under whom the individual is licensed as a salesperson.
    18. If the licensee is a broker, allowing any unlicensed salesperson to do any act or engage in any activity regulated by this chapter or under rule or regulation of the commission which is carried on in the name of or under the authority of the broker.
    19. A salesperson failing to place with that salesperson’s employing broker for deposit in the brokerage trust account all real estate trust moneys received by the salesperson within twenty-four hours of the time of receipt; or failure of the employing broker to place the moneys for deposit within twenty-four hours of the time of receipt from the salesperson. Provided that if trust money is received on a day before a holiday or on another day before which the depository is closed where the trust fund is maintained, the moneys must then be deposited during the next business day of the depository.
    20. The licensee failing to reduce an offer to writing when a proposed purchaser requests the offer be submitted to the seller, or failure of the licensee to submit all offers to a seller when the offers are received before the seller accepting an offer in writing and until the broker has knowledge of the acceptance.
    21. Any other conduct, whether of the same or of a different character than specified in this subsection, which constitutes dishonesty or fraudulent conduct, whether arising within or without the pursuit of that person’s licensed privilege.
    22. Any conduct that in the determination of the commission does not meet the generally accepted standard of expertise, care, or professional ability expected of real estate brokers or salespersons, provided that any disciplinary measures by the commission under this subdivision must be limited to the issuance of a letter of reprimand to the offending licensee.
  2. If the commission declines or fails to approve an application submitted to the commission, the commission immediately shall give notice of that fact to the applicant, and upon request from the applicant, filed within twenty days after the receipt of the notice, shall fix a time and place for hearing, of which twenty days’ notice must be given to the applicant and to other persons interested or protesting, to offer evidence relating to the application. In such cases the commission shall fix the time for such hearing on a date within sixty days from receipt of the request for the particular hearing, provided the time of hearing may be continued from time to time with the consent of the applicant. As a result of such hearing, the commission may approve the application if all other applicable provisions of this chapter have been met, and permit the applicant to take the examination to determine whether the applicant must be licensed, or the commission may sustain the commission’s prior decision refusing to approve the application.
  3. A license may not be revoked or suspended, a monetary fine or actual costs may not be imposed, course attendance may not be required, nor any letter of reprimand issued except after hearing before the commission with a copy of the charges having been duly served upon the licensee and upon sustaining of the charges for suspension, revocation, fine, payment of actual costs incurred, required course attendance, or reprimand. The provisions of chapter 28-32 apply to and govern all proceedings for suspension, revocation, fine, payment of actual costs incurred, required course attendance, or reprimand of licenses or licensees.
  4. In any order or decision issued by the commission in resolution of a disciplinary proceeding in which disciplinary action is imposed against a licensee, the commission may direct the licensee to pay a fine not to exceed five thousand dollars and actual costs, including attorney’s fees, incurred by the commission in the investigation and prosecution of the case. All fines collected must be deposited in the commission’s license fee account.

Source:

S.L. 1973, ch. 357, § 1; 1975, ch. 106, § 494; 1977, ch. 130, § 41; 1977, ch. 407, § 1; 1979, ch. 469, § 2; 1987, ch. 531, § 1; 1989, ch. 528, § 1; 1991, ch. 342, § 37; 1991, ch. 466, § 8; 2003, ch. 366, § 1; 2007, ch. 370, § 4; 2021, ch. 316, § 9, effective August 1, 2021.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Real estate education fund chapter not to limit commission’s disciplinary authority, see N.D.C.C. § 43-23.2-13.

Notes to Decisions

In General.

Subdivision 1. u. of this section authorizes suspension only when a prospective purchaser requests a licensee to submit an offer to a seller and the licensee does not do so, but neither it nor any other subdivision expressly authorizes suspension when a licensee fails to submit an offer of the seller to a prospective purchaser. Wisdom v. State, 403 N.W.2d 19, 1987 N.D. LEXIS 278 (N.D. 1987).

Delaying Administrative Action.

Allowing a person convicted of felony fraud in connection with real estate transactions to retain his real estate license and continue business during his appeal of conviction would be contrary to public policy, and agreements will not be enforced if they have a tendency to be injurious to the public or against the public good; real estate commission had no authority to agree to refrain from disciplinary action pending resolution of broker’s appeal of his conviction. Muscatell v. North Dakota Real Estate Comm'n, 546 N.W.2d 374, 1996 N.D. LEXIS 120 (N.D. 1996).

Reprimand.

Since a reprimand is essentially akin to a brief suspension, it is comprehended within the power to suspend. Wisdom v. State, 403 N.W.2d 19, 1987 N.D. LEXIS 278 (N.D. 1987) (decision prior to 1987 amendment).

Sufficient Evidence.

Where the vendor testified that the real estate broker informed her that he might acquire an interest in the property immediately after she signed and accepted the offer, and one of two potential purchasers testified that he and the broker had earlier discussed the possibility of purchasing the property as partners, when that purchaser was preparing to make an offer to purchase, there was sufficient evidence of the broker’s intent to acquire an interest in the property, and his violation of subdivision 1. m. of this section. Wisdom v. State, 403 N.W.2d 19, 1987 N.D. LEXIS 278 (N.D. 1987).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Discrimination, suspension or revocation of real estate broker’s license on ground of, 42 A.L.R.3d 1099.

Use of unlicensed personnel in carrying out duties, revocation or suspension of real estate broker’s license for violation of statutes or regulations prohibiting, 68 A.L.R.3d 530.

Revocation or suspension of real-estate broker’s license for conduct not connected with business as broker, 22 A.L.R.4th 136.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property, 71 A.L.R.4th 511.

Grounds for revocation or suspension of license of real-estate broker or salesperson, 7 A.L.R.5th 474.

Unauthorized Practice of Law -- Real Estate Closings, 119 A.L.R.5th 191.

43-23-12. Broker’s place of business — License of salesperson.

  1. Every individual, partnership, association, corporation, or limited liability company licensed as a real estate broker is required to have and maintain a definite place of business within this state, for the transaction of real estate business, except as provided in section 43-23-10. The license as broker and the license of each real estate salesperson licensed under that broker must be prominently displayed in said office or the licensee’s name and license number listed on the broker’s website. The place of business must be designated in the license, and a license issued under the authority of this chapter may not authorize the licensee to transact business under any other broker. In case of removal from the designated broker, the licensee shall make application to the commission before the removal or within five days after the removal, designating the new location of such office, whereupon the commission immediately shall issue a new license for the new location for the unexpired period. The broker’s home may qualify as the place of business.
  2. All licenses issued to real estate salespersons must designate the broker of the salespersons. Prompt notice in writing, within five days, must be given to the commission by any real estate salesperson of a change of broker, and of the name of the licensed broker into whose supervision the salesperson is about to enter, and a new license must be issued by the commission to the salesperson for the unexpired term of the original license, upon the return to the commission of the license previously issued. The change of broker by any licensed real estate salesperson, without notice to the commission, automatically cancels that person’s license. Upon termination of a real estate salesperson’s supervision by a broker, the broker immediately shall notify the commission in writing. It is unlawful for any real estate salesperson to perform any of the acts contemplated by this chapter either directly or indirectly after that person’s supervision by a broker has been terminated, until the license has been reissued by the commission to a new broker.

Source:

S.L. 1957, ch. 293, § 12; R.C. 1943, 1957 Supp., § 43-2312; S.L. 1967, ch. 355, § 8; 1991, ch. 466, § 9; 1993, ch. 54, § 106; 1995, ch. 410, § 8; 2021, ch. 316, § 10, effective August 1, 2021.

43-23-12.1. Real estate brokerage firm — Duties required.

  1. A real estate brokerage firm and the real estate brokerage firm’s licensees, which provide services through a written agency agreement for a client, are bound to that client by the duties of loyalty, obedience, disclosure, confidentiality, reasonable care, diligence, and accounting, subject to the provisions of this chapter and subject to any rules adopted under this chapter. The agency relationship, which must be established through a written agency agreement, may be a seller agency, a buyer agency, a dual agency, an appointed agency, a subagency, or another form of agency relationship. If a different relationship, including a nonagency relationship with a customer, between the real estate brokerage firm and the person for which the real estate brokerage firm performs the services is intended, the relationship must be disclosed in writing pursuant to rules adopted by the board.
  2. If a buyer, prospective buyer, or seller is not represented by a real estate brokerage firm in the real property transaction, that buyer or seller remains a customer, and, as to that customer, the real estate brokerage firm and the real estate brokerage firm’s licensees are nonagents that owe the following legal duties: to perform customary acts typically performed by real estate licensees in assisting a transaction to the transaction’s closing or conclusion if these acts are to assist the customer for which the services are directly provided; to perform these acts with honesty and good faith; and to disclose to the customer any adverse material facts actually known by the licensee which pertain to the title of the real property, the physical condition of the real property, and defects in the real property. These limited duties are subordinate to any duties the real estate brokerage firm and the real estate brokerage firm’s licensees owe to a client in the same transaction.
  3. Unless otherwise agreed in writing, a real estate brokerage firm and the real estate brokerage firm’s licensees are not obligated to a client, to a customer, or to any other person to discover defects in any real property, to verify the ownership of any real property, or to independently verify the accuracy or completeness of any statement or representation made by any person other than the real estate brokerage firm and the real estate brokerage firm’s licensees involved in the transaction under question.
  4. Unless the licensee is directly involved in a transaction regarding the affected real property, this section does not result in imputing knowledge, regarding the affected real property, of one licensee within a real estate brokerage firm to another licensee within the same real estate brokerage firm or in imposing a duty upon a licensee within a real estate brokerage firm to disclose facts that are known by that licensee regarding the affected real property to another licensee within the same real estate brokerage firm.
  5. If a real estate brokerage firm and the real estate brokerage firm’s licensees represent two or more buyers or lessees as clients that desire to make an offer for the purchase or lease of the same real property, the real estate brokerage firm and the real estate brokerage firm’s licensees do not breach any duty by assisting such clients with multiple offers, even though the interests of such clients are competing, and are not required to disclose the existence of competing offers, except as otherwise set forth under this subsection. The real estate brokerage firm and the real estate brokerage firm’s licensees shall continue to honor agency duties to such clients, except as limited under this subsection. However, if an individual licensee has a written agency agreement with two or more buyers that desire to make an offer for the purchase or lease of the same real property, that licensee shall disclose to those competing buyer clients the fact that a competing written offer has been submitted by another buyer client of that licensee.
  6. If a real estate brokerage firm and the real estate brokerage firm’s licensees represent two or more sellers or lessors as clients that desire to offer competing real property for sale or lease, the real estate brokerage firm and the real estate brokerage firm’s licensees do not breach any duty to such clients by performing such services, even though the interests of such clients are competing. In such event, the real estate brokerage firm and the real estate brokerage firm’s licensees shall continue to honor agency duties to such clients, except as limited under this subsection.

Source:

S.L. 1995, ch. 411, § 3; 2011, ch. 316, § 2.

Collateral References.

Liability of vendor or real-estate broker for failure to disclose information off-site conditions affecting value of property, 41 A.L.R.5th 157.

Notes to Decisions

Private Right of Action.

Summary judgment was inappropriate on the breach of fiduciary duty claim against a real estate agent where N.D.C.C. § 43-23-12.1(1) imposed a fiduciary duty on the agent, and that section, along with the portions of N.D.C.C. ch. 43-23 relating to abrogation of the common law and the need for errors and omissions insurance created a private right of action. Olson v. Alerus Fin. Corp., 2015 ND 209, 868 N.W.2d 851, 2015 N.D. LEXIS 235 (N.D. 2015).

43-23-12.2. Duties supersede common law.

  1. The duties of a real estate brokerage firm, and the firm’s licensees, as specified in this chapter or in rules adopted to implement this chapter, supersede any fiduciary duties of that real estate brokerage firm and the firm’s licensees, to a person based on common-law principles of agency to the extent that those common-law fiduciary duties are inconsistent with the duties specified in this chapter or in rules adopted to implement this chapter.
  2. A client is not liable for a wrongful act, an error, an omission, or a misrepresentation made by a licensee in connection with the licensee providing brokerage services for the client, including brokerage services provided under a subagency relationship, unless the client knows or should have known of the wrongful act, error, omission, or misrepresentation or unless the licensee is repeating a misrepresentation made by the client. This subsection supersedes any conflicting common-law duty of the client.
  3. A real estate brokerage firm that is providing brokerage services to a client is not liable for a wrongful act, an error, an omission, or a misrepresentation made by the client, listing agent of another real estate brokerage firm, or subagent of another real estate brokerage firm, unless the real estate brokerage firm knew or should have known of the wrongful act, error, omission, or misrepresentation or unless the client, listing agent of another real estate brokerage firm, or subagent of another real estate brokerage firm is repeating a misrepresentation made by the real estate brokerage firm.
  4. This section does not limit the liability of a licensee under section 43-23-11.1 nor of a client for substantial and willful misrepresentations made in reference to a real estate transaction. As used in this section, the term “real estate brokerage firm” includes the firm and brokers and agents who work for the firm.

Source:

S.L. 1995, ch. 411, § 4; 2001, ch. 381, § 1.

43-23-12.3. Brokerage firm may appoint agents.

  1. A real estate brokerage firm, through a designated broker, may appoint in writing to a client the licensee or licensees within the brokerage firm who will act as appointed agent of that client to the exclusion of all other licensees within the brokerage firm.
  2. If a real estate brokerage firm appoints an appointed agent for clients of the agency who are, or may be, parties in the same real estate transaction, the brokerage firm and its licensees are not dual agents as to those clients, and there is no imputation of knowledge or information among or between said clients, the real estate brokerage firm, and the appointed agents.
  3. Nothing in this section prevents a real estate brokerage firm from entering a dual agency relationship with its clients after complying with any disclosure requirements provided by this chapter or by rules adopted under this chapter.

Source:

S.L. 1995, ch. 411, § 5.

43-23-13. Fees.

Fees for real estate brokers and real estate salespersons are as follows:

  1. A fee of not more than two hundred dollars, as set by the commission, must accompany an application for an individual’s real estate broker’s license and for each annual renewal of the license.
  2. For each license issued to a partnership, association, corporation, limited liability company, trust, cooperative, or other firm or entity, foreign or domestic, and for each annual renewal of the license, a fee of not more than two hundred dollars, as set by the commission.
  3. For an individual’s real estate salesperson’s license and for each annual renewal of the license, a fee of not more than two hundred dollars, as set by the commission.
  4. The commission shall set and collect reasonable fees to help offset the cost of operating the commission.

Source:

S.L. 1957, ch. 293, § 13; R.C. 1943, 1957 Supp., § 43-2313; S.L. 1967, ch. 354, §§ 5, 7; 1967, ch. 355, § 9; 1983, ch. 485, § 1; 1987, ch. 531, § 2; 1989, ch. 528, § 2; 1991, ch. 466, § 10; 1993, ch. 54, § 106; 1993, ch. 433, § 1; 1995, ch. 410, § 9; 1995, ch. 412, § 1; 2003, ch. 367, § 1.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

Real estate education fund, additional fees paid into, see N.D.C.C. § 43-23.2-02.

43-23-13.1. License renewal.

Every person licensed to practice as a real estate broker or real estate salesperson shall register annually with the commission and pay the appropriate annual renewal fee as provided in section 43-23-13. The application for renewal must be accompanied by such certification as required by this chapter and rules of the commission to show compliance with the educational requirements of sections 43-23-08 and 43-23-08.2, and must be submitted to the commission with the appropriate fee no later than the application deadline set by the commission. A licensee that fails to file a timely application for the renewal of any license and pay the renewal fee on or before the application deadline may file a late renewal application, together with the required educational certification, before January fifteenth of the subsequent year and shall pay, in addition to the renewal fee, a late fee as set by the commission for each month or fraction of a month after the application deadline. Any license not renewed by January fifteenth must be canceled. The cancellation must be performed without any notice or opportunity for hearing. Any person whose license has been canceled and which desires relicensure must be required to satisfy the application and examination requirements for prospective licensees in accordance with this chapter and rules of the commission.

A licensee may not engage in any activity after December thirty-first of any year for which a license is required under this chapter unless that person’s license has been renewed by the commission.

Source:

S.L. 1983, ch. 485, § 2; 1991, ch. 466, § 11; 1991, ch. 468, § 2; 1995, ch. 410, § 10; 2003, ch. 367, § 2; 2015, ch. 300, § 1, effective August 1, 2015; 2021, ch. 316, § 11, effective August 1, 2021.

43-23-14. Fund handling by broker. [Repealed]

Repealed by S.L. 1973, ch. 358, § 2.

43-23-14.1. Handling of funds by brokers.

Except as otherwise provided in this section, every broker, at all times, shall maintain in the broker’s name or firm name, a separate, noninterest-bearing trust account designated as such in a federally insured financial institution in this state in which the broker immediately shall place as a demand deposit all funds not the broker’s own coming into the broker’s possession, in accordance with rules adopted by the commission. This requirement extends to funds in which the broker may have some future interest or claim and includes earnest money deposits. A broker may not commingle the broker’s personal funds or other funds in a trust account, except a broker may deposit and keep a sum not to exceed five hundred dollars in the account from the broker’s personal funds, which sum must be specifically identified and deposited to cover service charges related to the trust account. In conjunction with the account, the broker shall maintain at the broker’s usual place of business, books, records, contracts, and other necessary documents so the adequacy of the account may be determined at any time. Trust accounts and other records must be open to inspection by the commission and the commission’s duly authorized agents at all times during regular business hours at the broker’s usual place of business.

A broker that does not accept trust funds in real estate brokerage transactions and which has applied for and received a waiver from the real estate commission is not required to maintain a designated trust account. However, if a broker does not maintain a trust account and later receives trust funds in a real estate brokerage transaction, the broker shall open a designated trust account as required by this section and deposit any trust funds in accordance with rules adopted by the commission. A broker shall maintain a record tracking the earnest money associated with all transactions even if the funds are deposited directly with the title company and the broker does not take possession of the funds.

Source:

S.L. 1973, ch. 358, § 1; 1981, ch. 447, § 3; 1999, ch. 384, § 1; 2021, ch. 316, § 12, effective August 1, 2021.

43-23-15. Real estate courses — Studies.

  1. The commission may conduct or hold or assist in conducting or holding real estate courses or institutes, and incur and pay the necessary expenses in connection therewith, which courses or institutes must be open to any licensee without any charge or fee.
  2. The commission may assist libraries, real estate brokers and real estate salespersons, and institutes and foundations, with financial aid or otherwise, in providing texts, sponsoring studies, surveys, and programs for the benefit of real estate and the elevation of the real estate business.

Source:

S.L. 1957, ch. 293, § 15; R.C. 1943, 1957 Supp., § 43-2315; S.L. 1991, ch. 466, § 12.

43-23-16. Licensee list.

The executive director shall maintain a list online of the names and addresses of all licensees licensed by the board under the provisions of this chapter, together with such other information relative to the enforcement of the provisions of this chapter as the board may deem of interest to the public.

Source:

S.L. 1957, ch. 293, § 16; R.C. 1943, 1957 Supp., § 43-2316; S.L. 1999, ch. 278, § 70; 2001, ch. 120, § 1; 2007, ch. 370, § 5; 2021, ch. 316, § 13, effective August 1, 2021.

43-23-17. Penalty.

Any person violating section 43-23-05 is guilty of a class B misdemeanor. Any person violating section 43-23-14.1 is guilty of an infraction.

Source:

S.L. 1957, ch. 293, § 17; R.C. 1943, 1957 Supp., § 43-2317; S.L. 1975, ch. 106, § 495; 2009, ch. 359, § 6; 2015, ch. 300, § 2, effective August 1, 2015.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-23-18. Injunctions authorized to enforce law.

If any person or entity has engaged in any act or practice that constitutes or will constitute a violation of this chapter, the commission may commence an action in the district court of the county in which the person or entity resides or in the district court of the county in which the act or practice occurred for an injunction to enforce compliance with this chapter or rules adopted by the commission. The commission is not required to give any bond for commencing this action. Upon a showing that the person or entity has engaged in any act or practice in violation of this chapter or rules adopted by the commission, the district court may enjoin the act or practice and may make any order necessary to conserve, protect, and disburse any funds involved.

Source:

S.L. 1995, ch. 413, § 1.

43-23-19. Errors and omissions insurance required of salespersons and brokers — Rules.

The real estate commission shall adopt rules pursuant to chapter 28-32 requiring as a condition of licensure that all real estate salespersons and brokers, except those which hold inactive licenses, carry errors and omissions insurance covering all activities contemplated under this chapter.

Source:

S.L. 2001, ch. 382, § 1; 2021, ch. 316, § 14, effective August 1, 2021.

43-23-20. Group insurance coverage authorized — Independent errors and omissions coverage.

The real estate commission may negotiate by bid with an insurance provider for a group policy under which coverage is available to all licensees with no right on the part of the insurer to cancel coverage provided to any licensee, except as provided by rules adopted by the commission. A licensee may obtain errors and omissions insurance independently if the coverage complies with the minimum requirements established by the commission.

Source:

S.L. 2001, ch. 382, § 1.

43-23-21. Commission to determine conditions of errors and omissions coverage.

The real estate commission shall determine the terms and conditions of errors and omissions coverage required by this chapter, including the minimum limits of coverage, the permissible deductible, and the permissible exceptions.

Source:

S.L. 2001, ch. 382, § 1.

43-23-22. Notice of terms and conditions of errors and omissions — Certificate of coverage.

Each licensee must be notified of the required terms and conditions of coverage at least thirty days before the annual license renewal date. A certificate of coverage, showing compliance with the required terms and conditions of coverage, must be filed annually with the real estate commission by each licensee who elects not to participate in the group insurance program administered by the real estate commission.

Source:

S.L. 2001, ch. 382, § 1.

43-23-23. Errors and omissions coverage not required if premium limit unobtainable.

If the real estate commission is unable to obtain errors and omissions insurance coverage at a reasonable premium, the errors and omissions insurance requirement of this section does not apply during the year for which coverage cannot be obtained.

Source:

S.L. 2001, ch. 382, § 1; 2007, ch. 371, § 1.

CHAPTER 43-23.1 Subdivided Lands Disposition Act

43-23.1-01. Short title.

This chapter must be known and may be cited as the “Subdivided Lands Disposition Act”.

Source:

S.L. 1971, ch. 442, § 1.

Collateral References.

Validity and construction of regulations as to subdivision maps or plats, 11 A.L.R.2d 524, 532.

Law Reviews.

Time Share Ownership: A Primer, 57 N.D. L. Rev. 151 (1981).

43-23.1-02. Definitions.

When used in this chapter, unless the context otherwise requires:

  1. “Commission” means the state real estate commission.
  2. “Disposition” includes sale, lease, assignment, award by lottery, or any other transaction concerning a subdivision, if undertaken for gain or profit.
  3. “Offer” includes any inducement, solicitation, or attempt to encourage a person to acquire an interest in land, if undertaken for gain or profit.
  4. “Person” means an individual, corporation, limited liability company, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
  5. “Purchaser” means a person who acquires or attempts to acquire or succeeds to an interest in land.
  6. “Subdivider” means any owner of subdivided land who offers it for disposition or the principal agent of an inactive owner.
  7. “Subdivision” and “subdivided lands” means any land situated outside the state of North Dakota which is divided or is proposed to be divided for the purpose of disposition into five or more lots, parcels, units, or interests and also includes any land, whether contiguous or not, if five or more lots, parcels, units, or interests are offered as a part of a common promotional plan of advertising and sale.

Source:

S.L. 1971, ch. 442, § 2; 1993, ch. 54, § 106.

43-23.1-03. Administration of chapter.

This chapter must be administered by the state real estate commission.

Source:

S.L. 1971, ch. 442, § 3.

43-23.1-04. Prohibitions on dispositions of interests in subdivisions.

Unless the subdivided lands or the transaction is exempt under section 43-23.1-05, it is unlawful for any person in this state:

  1. To offer or to dispose of any interest in subdivided lands located without this state prior to the time that the subdivided lands are registered in accordance with this chapter.
  2. To dispose of any interest in subdivided lands unless a current public offering statement is delivered to the purchaser and the purchaser is afforded a reasonable opportunity to examine the public offering statement prior to the disposition.

Source:

S.L. 1971, ch. 442, § 4.

43-23.1-05. Exemptions.

  1. Unless the method of disposition is adopted for the purpose of evasion of this chapter, the registration provisions of this chapter do not apply to offers or disposition of an interest in land:
    1. By a purchaser of subdivided lands for the purchaser’s own account in a single or isolated transaction;
    2. If fewer than five separate lots, parcels, units, or interests in subdivided lands are offered by a person in a period of twelve months;
    3. To persons who are engaged in the business of construction of buildings for resale or to persons who acquire an interest in subdivided lands for the purpose of engaging, and do engage, in the business of construction of buildings for resale;
    4. Pursuant to court order;
    5. By any government or government agency; or
    6. As cemetery lots or interests.
  2. Unless the method of disposition is adopted for the purpose of evasion of this chapter, the registration provisions of this chapter do not apply to:
    1. Offers and dispositions of securities currently registered with the North Dakota securities commissioner;
    2. A subdivision as to which the plan of disposition is to dispose to ten or fewer persons; or
    3. A subdivision as to which the commission has granted an exemption as provided in section 43-23.1-11.
  3. Unless the method of disposition is adopted for the purpose of evasion of this chapter, the registration provisions of this chapter do not apply to the sale or lease of any improved land on which there is a residential, commercial condominium, or industrial building or the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years.

Source:

S.L. 1971, ch. 442, § 5; 2007, ch. 372, § 1.

43-23.1-06. Application for registration.

  1. The application for registration of subdivided lands shall be filed as prescribed by the commission and shall contain the following documents and information:
    1. An irrevocable appointment of the commission to receive service of any lawful process in any noncriminal proceeding arising under this chapter against the applicant or the applicant’s personal representative.
    2. A legal description of the subdivided lands offered for registration, together with a map showing the division proposed or made, the dimensions of the lots, parcels, units, or interests, and the relation of the subdivided lands to existing streets, roads, waterways, schools, churches, shopping centers, public transportation facilities, and other offsite improvements.
    3. The states or jurisdictions in which an application for registration or similar document has been filed, and any adverse order, judgment, or decree entered in connection with the subdivided lands by the regulatory authorities in each jurisdiction or by any court.
    4. The applicant’s name, address, and the form, date, and jurisdiction of organization; and the address of each of its offices in this state.
    5. The name, address, and principal occupation for the past five years of every director and officer of the applicant or person occupying a similar status or performing similar functions; the extent and nature of that person’s interest in the applicant or the subdivided lands as of a specified date within thirty days of the filing of the application.
    6. A statement, in a form acceptable to the commission, of the condition of the title to the subdivided lands including encumbrances as of a specified date within thirty days of the date of application by a title opinion of a licensed attorney, not a salaried employee, officer, or director of the applicant or owner, or by other evidence of title acceptable to the commission.
    7. Copies of the instruments which will be delivered to a purchaser to evidence the purchaser’s interest in the subdivided lands and of the contracts and other agreements which a purchaser will be required to agree to or sign.
    8. Copies of the instruments by which the interest in the subdivided lands was acquired and a statement of any lien or encumbrance upon the title and copies of the instruments creating the lien or encumbrance, if any, with data as to recording.
    9. If there is a lien or encumbrance affecting more than one lot, parcel, unit, or interest, a statement of the consequences for a purchaser of failure to discharge the lien or encumbrance and the steps, if any, taken to protect the purchaser in case of this eventuality.
    10. Copies of instruments creating easements, restrictions, or other encumbrances affecting the subdivided lands.
    11. A statement of the zoning and other governmental regulations affecting the use of the subdivided lands and also of any existing tax and existing or proposed special taxes or assessments which affect the subdivided lands.
    12. A statement of the existing provisions for legal and physical access or, if none exists, a statement to that effect; a statement of the existing or proposed provisions for sewage disposal, water, and other public utilities in the subdivision; a statement of the improvements to be installed, the schedule for their completion, and a statement as to the provisions for improvement maintenance.
    13. A narrative description of the promotional plan for the disposition of the subdivided lands, including the range of selling prices or rents at which it is proposed to dispose of the lots in the subdivision, together with copies of all advertising material which has been prepared for public distribution by any means of communication.
    14. A copy of its articles of incorporation, with all amendments thereto, if the subdivider is a corporation; copies of its articles of organization, with all amendments thereto, if the subdivider is a limited liability company; copies of all instruments by which the trust is created or declared, if the subdivider is a trust; copies of its articles of partnership or association and all other papers pertaining to its organization, if the subdivider is a partnership, unincorporated association, or any other legal or commercial entity; and if the purported holder of legal title is a person other than the subdivider, copies of the above documents for such person.
    15. The proposed public offering statement.
    16. Such current financial statements, certified or otherwise, as the commission may require.
    17. Such other information and such other documents and certifications as the commission may require as being reasonably necessary or appropriate for the protection of purchasers.
  2. If the subdivider registers additional subdivided lands to be offered for disposition, the subdivider may consolidate the subsequent registration with any earlier registration offering subdivided lands for disposition under the same promotional plan.
  3. The subdivider shall immediately report any material changes in the information contained in an application for registration.

Source:

S.L. 1971, ch. 442, § 6; 1993, ch. 54, § 106.

43-23.1-07. Public offering statement.

  1. A public offering statement must disclose fully and accurately the physical characteristics of the subdivided lands offered and must make known to prospective purchasers all unusual and material circumstances or features affecting the subdivided lands. The proposed public offering statement submitted to the commission must be in a form prescribed by it and must include the following:
    1. The name and principal address of the subdivider.
    2. A general description of the subdivided lands stating the total number of lots, parcels, units, or interests in the offering.
    3. The significant terms of any encumbrances, easements, liens, and restrictions, including zoning and other regulations, affecting the subdivided lands and each unit or lot, and a statement of all existing taxes and existing or proposed special taxes or assessments which affect the subdivided lands.
    4. A statement of the use for which the property is offered.
    5. Information concerning improvements, including streets, water supply, levees, drainage control systems, irrigation systems, sewage disposal facilities, and customary utilities, and the estimated cost, date of completion, and responsibility for construction and maintenance of existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in subdivided lands.
    6. Such of the information contained in the application for registration, and any amendments thereto, and such other information as the commission may require as being necessary or appropriate in the public interest or for the protection of purchasers.
  2. The public offering statement may not be used for any promotional purposes before registration of the subdivided lands and afterwards only if it is used in its entirety. No person may advertise or represent that the commission approves or recommends the subdivided lands or disposition thereof. No portion of the public offering statement may be underscored, italicized, or printed in larger or heavier or different color type than the remainder of the statement unless the commission requires it.
  3. The commission may require the subdivider to alter or amend the proposed public offering statement in order to assure full and fair disclosure to prospective purchasers, and no change in the substance of the promotional plan or plan of disposition or development of the subdivision may be made after registration without notifying the commission and without making appropriate amendment of the public offering statement. A public offering statement is not current unless all amendments are incorporated.

Source:

S.L. 1971, ch. 442, § 7.

43-23.1-08. Inquiry and examination.

Upon receipt of an application for registration in proper form, the commission shall forthwith initiate an examination to determine that:

  1. The subdivider can convey or cause to be conveyed the interest in subdivided lands offered for disposition if the purchaser complies with the terms of the offer, and, when appropriate, that release clauses, conveyances in trust, escrow and impoundage provisions, and other safeguards have been provided;
  2. There is reasonable assurance that all proposed improvements will be completed as represented;
  3. The advertising material and the general promotional plan are not false or misleading and comply with the standards prescribed by the commission in its rules and regulations and afford full and fair disclosures;
  4. The subdivider has not, or if a corporation or limited liability company, its officers, managers, governors, directors, and principals have not been convicted of a crime involving land dispositions or any aspect of the land sales business in this state, the United States, or any other state or foreign country within the past ten years and has not been subject to any injunction or administrative order within the past ten years restraining a false or misleading promotional plan involving land dispositions;
  5. There is no evidence which would reasonably lead the commission to believe that the subdivider, or if a corporation or limited liability company, its officers, managers, governors, directors, or principals are contemplating a fraudulent or misleading sales promotion; and
  6. The public offering statement requirements of this chapter have been satisfied.

Source:

S.L. 1971, ch. 442, § 8; 1993, ch. 54, § 106.

43-23.1-09. Notice of filing — Registration — Fees.

  1. Upon receipt of the application for registration in proper form and of a registration fee of one hundred dollars, the commission shall issue a notice of filing to the applicant. Within ninety days from the date of the notice of filing, the commission shall enter an order registering the subdivided lands or rejecting the registration. If no order of rejection is entered within ninety days from the date of notice of filing, the land must be deemed registered unless the applicant has consented in writing to a delay.
  2. If the commission affirmatively determines, upon inquiry and examination, that the requirements of section 43-23.1-08 have been met, it shall enter an order registering the subdivided lands and shall designate the form of the public offering statement.
  3. If the commission determines, upon inquiry and examination, that any of the requirements of section 43-23.1-08 has not been met, the commission shall notify the applicant that the application for registration must be corrected in the particulars specified within ten days. If the requirements are not met within the time allowed, the commission shall enter an order rejecting the registration which must include the findings of fact upon which the order is based. The order rejecting the registration shall not become effective for twenty days during which time the applicant may petition for reconsideration and is entitled to a hearing.
  4. Registration under this chapter is effective for a period of one year and may be renewed for additional periods of one year by filing, not later than fifteen days prior to the expiration of a registration, a renewal application in such form and containing such information as the commission shall prescribe, together with the payment of a renewal fee of one hundred dollars. The initial registration and any renewal fees may not be returned or refunded for any reason.

Source:

S.L. 1971, ch. 442, § 9.

43-23.1-10. Annual report.

  1. Within thirty days after each annual anniversary date of an order registering subdivided lands, the subdivider shall file a report in the form prescribed by the commission. The report must reflect any material changes in information contained in the original application for registration.
  2. The commission, at its option, may permit the filing of annual reports within thirty days after the anniversary date of the consolidated registration in lieu of the anniversary date of the original registration.

Source:

S.L. 1971, ch. 442, § 10.

43-23.1-11. General powers and duties.

  1. The commission has the authority to promulgate, to amend, and to repeal reasonable rules and regulations for the administration and enforcement of this chapter. Such rules and regulations must include, but not be limited to, provisions for advertising standards to assure full and fair disclosure; provisions for escrow or trust agreements or other means to assure that all improvements referred to in the application for registration and advertising will be completed and that purchasers will receive the interest in land for which they contracted; provisions for operating procedures; and such other rules and regulations as are necessary or proper to accomplish the purposes of this chapter.
  2. All advertising material of any nature whatsoever prepared for use in connection with the offer and disposition of any interests in subdivided lands registered under this chapter must be submitted to and approved by the commission prior to its use.
  3. As a condition precedent to the registration of any subdivided lands, the commission shall require that the subdivider file an indemnity bond running to the state of North Dakota for the use, benefit, and protection of any person and conditioned for the faithful compliance by the subdivider, the subdivider’s agents and employees with all of the provisions of this chapter, and with all rules, regulations, and orders made pursuant thereto and for the faithful performance and payment of all obligations of the subdivider, the subdivider’s agents and employees in connection with the registration. The indemnity bond must be of such type and in such form as must be prescribed by the commission and must be in such amount as the commission deems necessary to protect purchasers when the volume of business of the subdivider and other relevant factors are taken into consideration, but in no event less than twenty-five thousand dollars. Any such bond must have as surety thereon a surety company authorized to do business in this state.
  4. Whenever it appears that a person has engaged or is about to engage in acts or practices which constitute or will constitute a violation of the provisions of this chapter or of a rule or regulation or order hereunder, the commission, with or without prior administrative proceedings, may bring an action in any district court to enjoin the acts or practices and to enforce compliance with this chapter or any rule or regulation or order hereunder. Upon a proper showing, a permanent or temporary injunction or restraining order must be granted without bond.
  5. The commission may intervene in a suit involving subdivided lands. In any suit by or against a subdivider involving subdivided lands, the subdivider promptly shall furnish the commission notice of the suit and copies of all pleadings.
  6. The commission may:
    1. Accept registrations filed in other states or with the federal government;
    2. Contract with similar agencies in this state or other jurisdictions to perform investigative functions; and
    3. Accept grants-in-aid from any source.
  7. The commission shall cooperate with similar agencies in other jurisdictions to establish uniform filing procedures and forms, uniform public offering statements, advertising standards, rules and regulations, and common administrative practices.
  8. The commission may exempt a subdivision of ten or fewer lots, parcels, units, or interests from the provisions of this chapter if it determines that the plan of promotion and disposition is primarily directed to persons in the local community in which the subdivision is located.

Source:

S.L. 1971, ch. 442, § 11.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-23.1-12. Fraudulent practices.

It is a fraudulent practice, and it is unlawful:

  1. For any person knowingly to subscribe to or make or cause to be made any material false statement or representation in any application, financial statement, or other document or statement required to be filed under any provision of this chapter, or to omit to state any material statement or fact in any such document or statement which is necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;
  2. For any person, in connection with the offer, disposition, or purchase of subdivided lands, directly or indirectly, to employ any device, scheme, or artifice to defraud;
  3. For any person, in connection with the offer, disposition, or purchase of subdivided lands, directly or indirectly, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
  4. For any person, in connection with the offer, disposition, or purchase of subdivided lands, directly or indirectly, to engage in any act, practice, or course of business which operates or would operate as a fraud or deception upon purchasers or the public.

Source:

S.L. 1971, ch. 442, § 12.

43-23.1-13. Investigations and proceedings.

  1. The commission shall investigate any subdivision offered for disposition in this state and may:
    1. Rely upon any relevant information concerning a subdivision obtained from the federal housing administration, the United States veterans administration, or any other federal agency having comparable duties in relation to subdivisions;
    2. Require the applicant to submit reports prepared by competent engineers as to any hazard to which any subdivision offered for disposition is subject or any factor which affects the utility of interests within the subdivision, and require evidence of compliance in removing or minimizing all hazards reflected in engineering reports;
    3. Require an onsite inspection of the subdivision by a person or persons designated by it. All expenses incurred in connection with an onsite inspection must be defrayed by the applicant, and the commission shall require a deposit sufficient to defray such expenses in advance;
    4. Make public or private investigations within or outside this state to determine whether any person has violated or is about to violate this chapter or any rule, regulation, or order hereunder, or to aid in the enforcement of this chapter or in prescribing rules and regulations and forms hereunder; and
    5. Require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all the facts and circumstances concerning the matter to be investigated.
  2. For the purpose of any investigation or proceeding under this chapter, the commission or any person designated by it may administer oaths or affirmations, and upon its own motion or upon the request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.
  3. Upon failure to obey a subpoena or to answer questions propounded by the investigator and upon reasonable notice to all persons affected thereby, the agency may apply to the district court for an order compelling compliance.
  4. The commission may permit a person registered with the commission whose conduct or actions may be under investigation to waive formal proceedings and enter into a consent proceeding whereby orders, rules, or letters of censure or warning, whether formal or informal, may be entered against said person.
  5. Except as otherwise provided in this chapter, all proceedings under this chapter must be in accordance with chapter 28-32.

Source:

S.L. 1971, ch. 442, § 13.

43-23.1-14. Orders.

  1. The commission may issue an order requiring a person to cease and desist from the unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this chapter if the commission determines after notice and hearing that a person has:
    1. Violated any provision of this chapter;
    2. Directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of an interest in subdivided lands;
    3. Made any substantial change in the plan of disposition and development of the subdivided lands after the order of registration without obtaining prior written approval from the commission;
    4. Disposed of any subdivided lands that have not been registered with the commission; or
    5. Violated any lawful order or rule or regulation of the commission
  2. If the commission makes a finding of fact in writing that the public interest will be irreparably harmed by delay in issuing an order, the commission may commence an action in the district court of the county in which the act or practice occurred for an injunction to enforce compliance with this chapter. The commission is not required to give any bond for commencing this action. Upon a showing of a violation the district court may enjoin the act or practice and may make any order necessary to conserve, protect, and disburse any funds involved.

.

Source:

S.L. 1971, ch. 442, § 14; 2021, ch. 316, § 15, effective August 1, 2021.

43-23.1-15. Revocation.

  1. A registration may be revoked after notice and hearing upon a written finding of fact that the subdivider has:
    1. Failed to comply with the terms of a cease and desist order;
    2. Been convicted of an offense determined by the commission to have a direct bearing upon a person’s ability to serve the public as a real estate subdivider, or the commission determines, following conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1;
    3. Disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of subdivision purchasers;
    4. Failed faithfully to perform any stipulation or agreement made with the commission as an inducement to grant any registration, to reinstate any registration, or to approve any promotional plan or public offering statement; or
    5. Made intentional misrepresentations or concealed material facts in an application for registration. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
  2. If the commission finds after notice and hearing that the subdivider has been guilty of a violation for which revocation could be ordered, it may issue a cease and desist order instead.

Source:

S.L. 1971, ch. 442, § 15; 1977, ch. 130, § 42.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-23.1-16. Judicial review.

A person who has exhausted all administrative remedies available within the commission and who is aggrieved by an order pertaining to registration, a cease and desist order, an order of revocation, or any other final decision of the commission is entitled to judicial review in accordance with chapter 28-32.

Source:

S.L. 1971, ch. 442, § 16.

43-23.1-17. Real estate license required.

No real estate broker, salesperson, or mortgage broker may offer or dispose of subdivided lands within or from this state, except in dispositions and transactions exempt under section 43-23.1-05, unless said real estate broker, salesperson, or mortgage broker is licensed pursuant to chapter 43-23.

Source:

S.L. 1971, ch. 442, § 17; 1991, ch. 466, § 13.

43-23.1-18. Civil remedy.

  1. Every disposition made in violation of any of the provisions of this chapter, or of any order issued by the commission under any of the provisions of this chapter, is voidable at the election of the purchaser. The person making such disposition, and every director, officer, salesperson, or agent of or for such person who has participated or aided in any way in making such disposition, shall be jointly and severally liable to such purchaser in any action at law in any court of competent jurisdiction for the consideration paid for the lot, parcel, unit, or interest, together with interest at the rate of six percent per year from the date of payment, property taxes and assessments paid, court costs, and reasonable attorney’s fees, less the amount of any income received from the subdivided lands, upon tender of appropriate instruments of reconveyance made at any time before the entry of judgment. If the purchaser no longer owns the lot, parcel, unit, or interest in subdivided lands, that person may recover the amount that would be recoverable upon a tender of a reconveyance less the value of the land when disposed of and less interest at the rate of six percent per year on that amount from the date of disposition.
  2. No action may be brought under this section for the recovery of the consideration paid after five years from the date of such disposition nor more than three years after the purchaser has received information as to matter or matters upon which the proposed recovery is based, whichever occurs first.
  3. Any stipulation or provision purporting to bind any person acquiring subdivided lands to waive compliance with this chapter or any rule or regulation or order under it is void.
  4. The rights and remedies provided by this chapter are in addition to any and all other rights and remedies that may exist at law or in equity.

Source:

S.L. 1971, ch. 442, § 18; 1991, ch. 466, § 14.

43-23.1-19. Jurisdiction.

Dispositions of subdivided lands are subject to this chapter, and the district courts of this state have jurisdiction in claims for relief arising under this chapter if:

  1. The subdivider’s principal office is located in this state; or
  2. Any offer or disposition of subdivided lands is made in this state, whether or not the offeror or offeree is then present in this state, if the offer originates within this state or is directed by the offeror to a person or place in this state and received by the person or at the place to which it is directed.

Source:

S.L. 1971, ch. 442, § 19; 1985, ch. 82, § 112.

43-23.1-20. Extradition.

In proceedings for extradition of a person charged with a crime under this chapter, it need not be shown that the person whose surrender is demanded has fled from justice or at the time of the commission of the crime was in the demanding or other state.

Source:

S.L. 1971, ch. 442, § 20.

43-23.1-21. Service of process.

  1. In addition to the methods of service provided for in the North Dakota Rules of Civil Procedure and statutes, service may be made by delivering a copy of the process to the office of the commission, but it is not effective unless:
    1. The plaintiff, which may be the commission in a proceeding instituted by it, forthwith sends a copy of the process and of the pleading by registered mail to the defendant or respondent at that person’s last-known address.
    2. The plaintiff’s affidavit of compliance with this section is filed in the case on or before the return day of the process, if any, or within such further time as the court allows.
  2. If any person, including any nonresident of this state, engages in conduct prohibited by this chapter or any rule or regulation or order hereunder, and has not filed a consent to service of process and personal jurisdiction over that person cannot otherwise be obtained in this state, that conduct authorizes the commission to receive service of process in any noncriminal proceeding against that person or that person’s successor which grows out of that conduct and which is brought under this chapter or any rule or regulation or order hereunder, with the same force and validity as if served on that person personally. Notice must be given as provided in subsection 1.

Source:

S.L. 1971, ch. 442, § 21.

43-23.1-22. Evidentiary matters.

  1. In any action, civil or criminal, when a defense is based upon any exemption provided for in this chapter, the burden of proving the existence of such exemption is upon the party raising such defense.
  2. In any action, civil or criminal, a certificate signed and sealed by the commission stating compliance or noncompliance with the provisions of this chapter is admissible in any such action.

Source:

S.L. 1971, ch. 442, § 22.

43-23.1-23. Penalties.

Any person who willfully violates any provision of this chapter or who willfully violates any rule or regulation or order of the commission made pursuant to the provisions of this chapter, or who engages in any act, practice, or transaction declared by any provision of this chapter to be unlawful, is guilty of a class C felony.

Source:

S.L. 1971, ch. 442, § 23; 1975, ch. 106, § 496.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-23.2 Real Estate Education Fund

43-23.2-01. Real estate education, research, and recovery fund — Purposes — Administration.

There is hereby created a real estate education, research, and recovery fund, which must be used to provide a fund whereby aggrieved persons may make application for the payment of unsatisfied judgments, and for the furnishing of education and research in the field of real estate for the benefit of licensees, all in accordance with the provisions and limitations contained within this chapter. The fund must be administered by the state real estate commission as provided within this chapter.

Source:

S.L. 1975, ch. 409, § 1.

Collateral References.

Transactions within public security or guaranty fund designed to compensate those suffering damage or loss on account of real-estate brokers’ defalcations, 38 A.L.R.4th 792.

Real-estate broker’s liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold, 46 A.L.R.4th 546.

43-23.2-02. Fees paid into fund.

  1. In addition to the appropriate licensing fees paid by real estate brokers and salespersons, any person licensed as a real estate broker or salesperson for the first time, shall pay a fee of twenty dollars at the time of obtaining the license which must be credited into the education, research, and recovery fund. Except for assessments paid into the fund as provided in subsection 2, any person obtaining a broker’s or salesperson’s license for the first time, shall pay the fee of twenty dollars into the fund only once.
  2. If, on June thirtieth of any year, following the establishment of the real estate education, research, and recovery fund, the amount remaining in the fund is less than sixty thousand dollars, every licensed real estate broker and salesperson, when renewing that person’s license, shall pay, in addition to the annual renewal fee, a sum not to exceed twenty dollars, which must have been determined by the commission to be sufficient to restore the balance in the fund to at least sixty thousand dollars.
  3. The commission shall maintain a minimum of sixty thousand dollars in the fund for recovery purposes. Such funds must be invested and reinvested by the commission and interest from the investments must be deposited to the credit of the fund. Sufficient liquidity must be maintained so moneys are available to satisfy all claims that are processed through the commission by means of the procedures established in this chapter.
  4. The commission, in the commission’s discretion, may use any moneys in the fund in excess of sixty thousand dollars, regardless of whether the excess is from education, research, and recovery fund fees or accrued interest thereon, for the following purposes:
    1. To promote the advancement of education and research in the field of real estate for the benefit of those licensed under chapter 43-23.
    2. To underwrite educational seminars and other forms of educational projects for the benefit of real estate licensees.
    3. To establish a real estate chair or courses at North Dakota institutions of higher learning for the purpose of making such courses available to licensees and the general public.
    4. To contract for a particular educational or research project in the field of real estate to further the purposes of chapter 43-23.
  5. The executive director of the commission shall furnish a bond in the amount of sixty thousand dollars, upon such conditions as the commission may prescribe.

Source:

S.L. 1975, ch. 409, § 2; 1991, ch. 466, § 15; 2007, ch. 370, § 6; 2021, ch. 316, § 16, effective August 1, 2021.

43-23.2-03. Claims against fund — Orders for payment.

When any aggrieved person obtains a final judgment in any court of competent jurisdiction against any person licensed under chapter 43-23, on grounds of fraudulent, deceptive, or dishonest practices, or conversion of trust funds arising directly out of any act or transaction when the judgment debtor was licensed and performed acts for which a license is required under chapter 43-23, the aggrieved person may, upon obtaining such final judgment, file an application in the court in which the judgment was entered for an order directing payment out of the fund in the amount of the actual and direct loss up to the sum of fifteen thousand dollars, unpaid on the judgment, provided that nothing contained within this chapter may be construed to obligate the fund for more than fifteen thousand dollars per transaction regardless of the number of persons aggrieved or parcels of real estate involved in the transaction. The application must be verified and must be served on the commission and upon the judgment debtor and an affidavit of service filed with the court.

Source:

S.L. 1975, ch. 409, § 3; 2021, ch. 316, § 17, effective August 1, 2021.

43-23.2-04. Hearings.

The court shall conduct a hearing upon the filing of the application, which may be continued, within the discretion of the court, for such period as the court may deem appropriate. At such hearing the aggrieved person must be required to show that:

  1. The person is not the spouse of the debtor, or the personal representative of such spouse.
  2. The person has complied with all the requirements of this chapter.
  3. The person has obtained a judgment as set out in section 43-23.2-03, stating the amount thereof and the amount owing thereon at the date of the application.
  4. The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets which may be sold or applied in satisfaction of the judgment.
  5. By such search, the person has discovered no personal or real property or other assets liable to be sold or applied, or that the person has discovered certain of them, describing them, owned by the judgment debtor and liable to be so applied, and that the person has taken all necessary action and proceedings for the realization thereof, and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized.
  6. The person has diligently pursued available remedies against all the judgment debtors and all other persons liable to the person in the transaction for which recovery is sought from the real estate education, research, and recovery fund.
  7. The person is making the application not more than one year after the judgment becomes final.

Source:

S.L. 1975, ch. 409, § 4.

43-23.2-05. Motion for dismissal — Commission may defend action.

Whenever the court proceeds upon an application as set forth in this chapter, it shall order payment out of the real estate education, research, and recovery fund only upon a determination that the aggrieved party has a valid claim for relief within the purview of this chapter and has complied with the provisions of this chapter. The judgment is only prima facie evidence of such claim for relief and for the purposes of this chapter is not conclusive. The commission may defend any such action on behalf of the fund and has recourse to all appropriate means of defense and review including examination of witnesses. The commission may move the court at any time to dismiss the application when it appears there are no triable issues and the petition is without merit. The motion may be supported by affidavit of any person or persons having knowledge of the facts, and may be made on the basis that the petition, and the judgment referred to therein, does not form the basis for a meritorious recovery claim within the purview of this chapter; provided, however, the commission shall give written notice at least ten days before such motion. The commission may, subject to court approval, compromise a claim based upon the application of an aggrieved party. It is not bound by any prior compromise or stipulation of the judgment debtor.

Source:

S.L. 1975, ch. 409, § 5; 1985, ch. 82, § 113.

43-23.2-06. Judgment debtor may defend — Default judgments.

The judgment debtor may defend any such action on the judgment debtor’s own behalf and has recourse to all appropriate means of defense and review, including examination of witnesses. Whenever an applicant’s judgment is by default, stipulation, or consent, or whenever the action against the licensee was defended by a trustee in bankruptcy, the applicant has the burden of proving any claim for relief for fraudulent, deceptive, or dishonest practices, or conversion of trust funds. Otherwise, the judgment creates a rebuttable presumption of the fraudulent, deceptive, or dishonest practices, or conversion of trust funds. This presumption is a presumption affecting the burden of producing evidence.

Source:

S.L. 1975, ch. 409, § 6; 1985, ch. 82, § 114.

43-23.2-07. Order for payment.

If the court finds after the hearing that said claim should be levied against the portion of the fund allocated for the purpose of carrying out the provisions of this chapter, the court shall enter an order directed to the commission requiring payment from the fund of whatever sum it shall find to be payable upon the claim pursuant to the provisions of and in accordance with the limitations contained in this chapter.

Source:

S.L. 1975, ch. 409, § 7.

43-23.2-08. Limitation of payment — Pro rata distribution.

Notwithstanding any other provision of this chapter, the liability of that portion of the fund allocated for the purposes of this chapter may not exceed fifteen thousand dollars for any one licensee. If the fifteen thousand dollar liability of the fund is insufficient to pay in full the valid claims of all aggrieved persons by whom claims have been filed against any one licensee, such fifteen thousand dollars must be distributed among them in the ratio that their respective claims bear to the aggregate of such valid claims or in such other manner as the court deems equitable. Distribution of such moneys must be among the persons entitled to share therein, without regard to the order or priority in which their respective judgments may have been obtained or their claims have been filed. Upon petition of the commission the court may require all claimants and prospective claimants against one licensee to be joined in one action, to the end that the respective rights of all such claimants to the fund may be equitably adjudicated and settled.

Source:

S.L. 1975, ch. 409, § 8.

43-23.2-09. Repayment to fund.

Should the commission pay from the fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensed broker or salesperson, the license of the broker or salesperson must be automatically suspended upon the effective date of an order by the court as set forth herein authorizing payment from the fund. No such broker or salesperson may be granted reinstatement until having repaid in full, plus interest at the rate of four percent a year, the amount paid from the fund on that person’s account. A discharge in bankruptcy does not relieve a person from the penalties and disabilities provided in this chapter.

Source:

S.L. 1975, ch. 409, § 9; 1991, ch. 466, § 16.

43-23.2-10. Claims satisfied in order of filing.

If, at any time, the money deposited in the fund and allocated for purposes other than real estate education and research is insufficient to satisfy any duly authorized claim or portion thereof, the commission shall, when sufficient money has been deposited in the fund, satisfy such unpaid claims or portions thereof, in the order that such claims or portions thereof were originally filed, plus accumulated interest at the rate of four percent a year.

Source:

S.L. 1975, ch. 409, § 10.

43-23.2-11. Deposits by commission.

Any sums received by the commission pursuant to any provision of this chapter must be deposited in a federally insured depository in this state, and credited to the real estate education, research, and recovery fund, and said sums must be allocated exclusively for the purposes provided in this chapter.

Source:

S.L. 1975, ch. 409, § 11.

43-23.2-12. Subrogation rights of commission.

When, upon the order of the court, the commission has paid from the fund any sum to the judgment creditor, the commission is subrogated to all of the rights of the judgment creditor to the extent of the amount so paid and the judgment creditor shall assign all the judgment creditor’s right, title, and interest in the judgment to the extent of the amount so paid to the commission and any amount and interest so recovered by the commission on the judgment must be deposited in the fund.

Source:

S.L. 1975, ch. 409, § 12.

43-23.2-13. Disciplinary action by commission.

Nothing contained in this chapter limits the authority of the commission to take disciplinary action against any licensee under other provisions of chapter 43-23, nor does the repayment in full of all obligations to the fund by any licensee nullify or modify the effect of any other disciplinary proceeding brought pursuant to the provisions of chapter 43-23.

Source:

S.L. 1975, ch. 409, § 13.

CHAPTER 43-23.3 Real Estate Appraisers

43-23.3-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Analysis” means a study of real estate other than estimating value.
  2. “Appraisal” means an analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in, or aspects of, real estate. An appraisal may be classified by subject matter into either a valuation or an analysis.
  3. “Appraisal assignment” means an engagement for which a person is employed or retained to act, or would be perceived by the public as acting, as a disinterested party in rendering an unbiased supportable appraisal.
  4. “Appraisal foundation” means the appraisal foundation incorporated as an Illinois corporation on November 30, 1987.
  5. “Appraisal report” means any communication of an appraisal.
  6. “Appraisal subcommittee” means the appraisal subcommittee of the federal financial institutions examination council.
  7. “Appraiser” means a person who engages in appraisal activity for valuable consideration.
  8. “Apprentice appraiser” means a person who holds a valid permit as an apprentice appraiser.
  9. “Board” means the North Dakota real estate appraiser qualifications and ethics board.
  10. “Certified appraiser” means a person who holds a valid permit as a certified residential or general appraiser.
  11. “Certified general appraiser” means a person who holds a valid permit as a certified general appraiser.
  12. “Certified residential appraiser” means a person who holds a valid permit as a certified residential appraiser.
  13. “Licensed appraiser” means a person who holds a valid permit as a licensed appraiser.
  14. “Permit” means the document issued by the board, verifying that the person named on the permit has fulfilled all prerequisites to practice either as an apprentice appraiser, a licensed appraiser, or a certified appraiser.
  15. “Real estate” means an identified parcel or tract of land including improvements, and interests, benefits, and rights inherent in the ownership of real estate.
  16. “Uniform standards of professional appraisal practices” means standards of appraisal promulgated by the appraisal foundation as adopted and modified by the board. The standards adopted and modified by the board must meet the minimum standards adopted by the appraisal foundation.
  17. “Valuation” means an estimate of the value of real estate or real property.

Source:

S.L. 1991, ch. 469, § 1; 2007, ch. 373, § 1.

43-23.3-02. North Dakota real estate appraiser qualifications and ethics board.

  1. The governor shall appoint the board. The board must consist of five members. One member must represent the public; one member must be a representative of the financial industry; and three members must be appraisers, at least one of which is experienced in the appraisal of agricultural property.
    1. Each appraiser member of the board must be either a licensed or certified appraiser, but at least two of the appraiser members must be certified appraisers.
    2. The governor shall appoint the financial industry representative from a list of qualified individuals submitted by the North Dakota bankers associations, the credit union association of the Dakotas, and the North Dakota farm credit system associations. Each of these entities may submit two names of candidates to the governor. The public member of the board may not be engaged in the practice of real estate appraising.
  2. The term of each member is five years. A member may not serve more than two consecutive five-year terms, after which at least two years must pass before the governor may reappoint that former member to the board. The governor shall appoint members so the terms of no more than two members expire each year. A member of the board continues to hold office until the appointment and qualification of a successor. The governor may remove a board member for cause.
  3. Annually the members shall elect a chairman from among the members. At least two of the members who are appraiser members must be present in order for a quorum to exist. The members are entitled to receive compensation for each day actually engaged in the service of the board and actual and necessary traveling expenses at the rate allowed other state officials, paid from the fees collected by the board.

Source:

S.L. 1991, ch. 469, § 2; 2011, ch. 317, § 1.

43-23.3-03. Powers and duties of the board.

  1. The board, or the board’s designated representative, shall:
    1. Define apprentice appraiser, licensed appraiser, certified residential appraiser, and certified general appraiser; determine the type of educational experience, appraisal experience, and equivalent experience that meet the requirements of this chapter; establish application procedures; and establish standards for approval and disapproval of applications for permits.
    2. Establish examination specifications for each category of licensed and certified appraiser and administer examinations.
    3. Approve or disapprove applications for permits, issue pocket cards and permits to practice, and maintain a registry of the names and addresses of individuals holding permits.
    4. Discipline permittees.
    5. Hold meetings, hearings, and examinations in places and at times as the board designates and maintain records of board activities.
    6. Adopt rules, pursuant to chapter 28-32, necessary to implement this chapter or carry out the requirements imposed by federal law.
    7. Adopt rules that clearly and concisely establish the standards for approval and disapproval of applications for permits. The rules must include a requirement that an application disapproval clearly specify the basis for the disapproval.
    8. Keep permittees informed of board activities, including providing notification of board member terms and any upcoming board vacancy; internet posting of meeting notices and minutes; and internet posting of proposed and final rule changes.
  2. The board, or the board’s designated representative, may:
    1. Promote research and conduct studies relative to real estate appraising and sponsor educational activities.
    2. Contract for services necessary to carry out this chapter.
  3. The board, or the board’s authorized representative, may investigate and gather evidence concerning alleged violations of the provisions of chapter 43-23.3 or the rules of the board. Board investigative files are exempt records as defined in subsection 5 of section 44-04-17.1, but a copy of the investigative file must be provided to a licensee if a complaint is filed against the licensee by the board.

Source:

S.L. 1991, ch. 469, § 3; 1999, ch. 385, § 2; 2003, ch. 368, § 1; 2007, ch. 373, § 2; 2011, ch. 317, § 2; 2015, ch. 301, § 1, effective August 1, 2015.

43-23.3-03.1. Public records exception.

Documents obtained by the board as part of the licensing, investigation, or disciplinary process which are deemed confidential under the uniform standards of professional appraisal practices are exempt records as defined in subsection 5 of section 44-04-17.1.

Source:

S.L. 1999, ch. 385, § 1.

43-23.3-04. Permit required — Exemptions.

Except as provided in this section, a person may not directly or indirectly engage in, advertise, conduct the business of, or act in any capacity as an apprentice, licensed, or certified appraiser without first obtaining a permit as provided in this chapter. An appraiser, apprenticed, licensed, or certified in another state may not engage in, advertise, conduct the business of, or act in any capacity as an appraiser in this state without first obtaining a temporary permit under section 43-23.3-11 or a permit under section 43-23.3-04.1. This chapter does not apply to a licensed real estate broker or salesperson who, in the ordinary course of business, gives an opinion to a potential seller or third party as to the recommended listing price of real estate or an opinion to a potential purchaser or third party as to the recommended purchase price of real estate. However, the opinion as to the listing price or the purchase price may not be referred to as an appraisal. This chapter does not apply to a person who, in the ordinary course of business, gives an opinion of the value of real estate to that person’s employer.

Source:

S.L. 1991, ch. 469, § 4; 2001, ch. 383, § 1; 2005, ch. 364, § 1; 2007, ch. 373, § 3; 2015, ch. 301, § 2, effective August 1, 2015.

43-23.3-04.1. Issuance of permits to applicants licensed or certified by another state.

The board shall issue a permit to an applicant who is licensed or certified in good standing by another state if the other state’s requirements to be licensed or certified are at least substantially equivalent to the requirements imposed by this state, and if grounds for denial of the application under section 43-23.3-18 do not exist. Within sixty days of filing a completed application, the board shall issue or deny the application and inform the applicant of the decision.

Source:

S.L. 2005, ch. 364, § 2; 2011, ch. 317, § 3; 2015, ch. 301, § 3, effective August 1, 2015.

43-23.3-05. Permit process.

An individual who desires to engage in the practice of real estate appraisal shall apply for a permit on forms prescribed by the board and submit the required fee.

Source:

S.L. 1991, ch. 469, § 5.

43-23.3-06. Classes of permits.

The board may issue apprentice, license, and certification permits for appraisers.

  1. An apprentice appraiser must meet the minimum requirements established by the board for a permit. An apprentice appraiser may only assist a licensed or a certified appraiser in the performance of an appraisal assignment.
  2. A licensed appraiser must meet the minimum requirements established by the board for a permit.
  3. A certified residential appraiser must meet the minimum requirements established by the board for a permit. The board’s requirements may not exceed the appraisal foundation qualification criteria. The board shall review periodically the appraisal foundation appraisal qualification criteria to ensure the board’s rules do not exceed the appraisal qualification criteria.
  4. A certified general appraiser must meet the minimum requirements established by the board for a permit. The board’s requirements may not exceed the appraisal foundation qualification criteria. The board shall review periodically the appraisal foundation appraisal qualification criteria to ensure the board’s rules do not exceed the appraisal qualification criteria.

Source:

S.L. 1991, ch. 469, § 6; 2007, ch. 373, § 4.

43-23.3-07. Examination requirement.

The board shall issue a permit to practice as a licensed, certified residential, or certified general appraiser to an individual who has demonstrated the following qualifications through a written examination process:

  1. Knowledge of technical terms used in or related to real estate appraising, appraisal report writing, and economic concepts relating to real estate.
  2. Understanding of the principles of land economics, appraisal processes, and of problems likely to be encountered in gathering, interpreting, and processing of data in carrying out appraisal disciplines.
  3. Understanding of the uniform standards of professional appraisal practices.
  4. Knowledge of theories of depreciation, cost estimating, methods of capitalization, the mathematics of real estate appraisal, and other principles and procedures determined by the board to be appropriate for the appreciable classification of permit.
  5. Basic understanding of real estate law.
  6. Understanding of the types of misconduct for which disciplinary proceedings may be initiated against an appraiser.

Source:

S.L. 1991, ch. 469, § 7; 2007, ch. 373, § 5.

43-23.3-08. Application prerequisites.

An applicant for a permit as an apprentice, licensed, certified residential, or certified general appraiser must successfully complete the education requirements established by the board.

Source:

S.L. 1991, ch. 469, § 8; 2001, ch. 383, § 2; 2003, ch. 368, § 2; 2007, ch. 373, § 6.

43-23.3-09. Appraisal experience.

The board may issue a permit to practice as a licensed, certified residential, or certified general appraiser to an individual who possesses the minimum experience requirements established by the board. The board shall require an applicant to furnish, under oath, a detailed listing of the appraisal reports or file memoranda for which appraisal experience is claimed by the applicant. Upon request, the applicant shall provide to the board copies of appraisal reports or other documents that the applicant has assisted in preparing.

Source:

S.L. 1991, ch. 469, § 9; 2001, ch. 383, § 3; 2007, ch. 373, § 7; 2015, ch. 301, § 4, effective August 1, 2015.

43-23.3-10. Expiration of permit.

Permits expire on December thirty-first of each year. The expiration date of the permit must appear on the permit and no other notice of its expiration need be given to the permittee.

Source:

S.L. 1991, ch. 469, § 10; 2003, ch. 368, § 3; 2005, ch. 364, § 3.

43-23.3-11. Temporary permit.

  1. The board may issue a temporary permit to an applicant who is apprenticed, licensed, or certified in good standing by another state. The board may deny a temporary permit to an applicant whose permit, apprenticeship, license, or certification was revoked, suspended, or otherwise subjected to discipline by any state or jurisdiction.
  2. An applicant for a temporary permit shall file with the board a designation in writing which appoints the chairman of the board to act as the applicant’s licensed agent upon whom all judicial and other process or legal notices directed to the applicant may be served. Copies of the appointment, certified by the chairman of the board, may be received in evidence in any proceeding and must be given the same effect as the original. In the written designation, the applicant shall agree that any lawful process against that individual which is served upon the agent is of the same legal force as if served upon the applicant, and that the authority of the agent continues in force as long as any liability of the applicant remains outstanding in this state. Upon the receipt of any process or notice, the chairman shall mail a copy of the process or notice by certified mail, return receipt requested, to the last-known business address of the applicant.
  3. The board may issue a temporary permit to an applicant if the applicant agrees in writing to abide by this chapter and to submit to the jurisdiction of the board.
  4. The board shall issue a temporary permit to an applicant who has complied with this section. The board may require the applicant to pay a fee. The board shall determine the amount of the fee and the duration of the temporary permit.

Source:

S.L. 1991, ch. 469, § 11; 2005, ch. 364, § 4; 2007, ch. 373, § 8.

43-23.3-12. Permit renewal.

To renew a permit, the permittee shall apply to the board and pay the required fee. With the application for renewal, the appraiser shall present evidence of having completed the continuing education requirements for renewal. The board may adopt rules to allow permits to be assigned to inactive status. Permits assigned to inactive status are subject to disciplinary action and activation of an inactive permit may be subject to a denial by the board.

Source:

S.L. 1991, ch. 469, § 12; 2003, ch. 368, § 4.

43-23.3-13. Principal place of business.

A permittee shall notify the board of the address of the permittee’s place of business. Within twenty days of a change in the address of the place of business, the permittee shall give written notification of the change to the board and pay the change of address fee.

Source:

S.L. 1991, ch. 469, § 13; 2007, ch. 373, § 9.

43-23.3-14. Permit number displayed with signature.

A permittee shall place the permittee’s permit number adjacent to the permittee’s signature on an appraisal report, contract, or other writing used by the permittee in conducting appraisal activities.

Source:

S.L. 1991, ch. 469, § 14; 2007, ch. 373, § 10.

43-23.3-15. Use of designation.

The terms “apprentice appraiser”, “licensed appraiser”, “certified residential appraiser”, “certified general appraiser”, and “certified appraiser” may only be used to refer to an individual who holds a permit under this chapter and may not be used following or immediately in connection with the name or signature of any other individual or person or in a manner that might be interpreted as referring to any other individual or person other than the individual who holds the permit. This section does not prohibit a licensed or certified appraiser from signing an appraisal report on behalf of a corporation, limited liability company, partnership, or firm.

Source:

S.L. 1991, ch. 469, § 15; 1993, ch. 54, § 106; 2007, ch. 373, § 11.

43-23.3-16. Action for fee.

No claim for relief may be instituted in any court of this state for compensation for an act done or service rendered as an apprentice, licensed, or certified appraiser unless the appraiser held a permit to practice under this chapter at the time of offering to perform the act or service or procuring a promise to contract for the payment of compensation for a contemplated act or service as an apprentice, licensed, or certified appraiser.

Source:

S.L. 1991, ch. 469, § 16; 2007, ch. 373, § 12.

43-23.3-17. Retention of records.

An apprentice, licensed, or certified appraiser shall retain, for at least five years, originals or copies of all written contracts engaging the permittee’s services for appraisal work and all reports and supporting data assembled and formulated by the permittee in preparing the reports. The period for retention of records applies to each engagement of the services of the permittee and commences upon the date of the submission of the appraisal to the client unless, within that period, the permittee is notified that the appraisal report is involved in litigation, in which event the period for the retention of records commences on the date of the final disposition of the litigation. The permittee shall make available for inspection and copying by the board on reasonable notice all records required to be maintained.

Source:

S.L. 1991, ch. 469, § 17; 2007, ch. 373, § 13.

43-23.3-18. Standards of professional appraisal practice.

An apprentice, licensed, or certified appraiser shall comply with the standards of professional appraisal practice and ethical rules specified by the uniform standards of professional appraisal practice and all other standards and ethical requirements adopted by the appraisal foundation.

Source:

S.L. 1991, ch. 469, § 18; 2007, ch. 373, § 14.

Notes to Decisions

Failure to Adhere to USPAP.

Although Montana and North Dakota required licensed appraisers to follow the Uniform Standards of Professional Appraisal Practice (USPAP), and taxpayers’ expert did not adhere to USPAP, the United States Tax Court had declined to adopt USPAP as the sole standard for reliability of an expert appraiser under Fed. R. Evid. 702. Rather, this affected the weight that the court gave the expert’s testimony but did not make it so unreliable as to be inadmissible. Plentywood Drug, Inc. v. Comm'r, T.C. Memo 2021-45, 2021 Tax Ct. Memo LEXIS 69 (T.C. Apr. 26, 2021).

In General.

The uniform standards of professional appraisal practice are flexible and do not confine the ultimate determination of value to any single consideration. Trollwood Village Ltd. Ptnr. v. Cass County Bd. of County Comm'rs, 557 N.W.2d 732, 1996 N.D. LEXIS 272 (N.D. 1996).

43-23.3-19. Continuing education.

The board shall adopt rules for the implementation of continuing education requirements to assure that permit renewal applicants have current knowledge of appraisal theories, practices, and techniques that provide a high degree of service and protection to the public. The rules must establish:

  1. Policies and procedures for obtaining board approval of courses of instruction.
  2. Standards, policies, and procedures to be applied by the board in evaluating an applicant’s claims of equivalency.
  3. Standards, monitoring methods, and systems for recording attendance by course sponsors.

Source:

S.L. 1991, ch. 469, § 19; 2003, ch. 368, § 5; 2005, ch. 364, § 5.

43-23.3-20. Fees.

The board may charge apprentice, licensed, and certified permittees and educational providers or promoters reasonable fees to help offset costs of operating the board. The board shall establish the charges by rule.

Source:

S.L. 1991, ch. 469, § 20.

43-23.3-21. Disposition of fees.

The board, or its designated representative, shall deposit all fees collected by the board in a separate account. Disbursements from the account may not exceed the moneys credited to it. The board’s designated representative shall review and pay appropriate charges against the account for services provided to the board.

Source:

S.L. 1991, ch. 469, § 21.

43-23.3-22. Disciplinary proceedings.

  1. The board may deny an application for, refuse to renew, suspend, or revoke a permit, impose a monetary fine, or issue a letter of reprimand, when the applicant or permittee has:
    1. Procured or attempted to procure a permit by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for certification, or through fraud or misrepresentation.
    2. Failed to meet the minimum qualifications established under this chapter.
    3. Paid money other than provided for by this chapter to any member or employee of the board to procure a permit.
    4. Been convicted, including a conviction based upon a plea of guilty or nolo contendere, of a felony or of a crime that is substantially related to the qualifications, functions, and duties of a person developing and communicating appraisals to others.
    5. Performed an act involving dishonesty, fraud, or misrepresentation with the intent to benefit substantially that person or another person, or with the intent to injure substantially another person.
    6. Violated any standard for the development or communication of appraisals as provided in this chapter.
    7. Failed or refused without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal report, or communicating an appraisal.
    8. Acted with gross negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal.
    9. Willfully violated this chapter or rules of the board.
    10. Accepted an appraisal assignment when the employment is contingent upon the reporting of a predetermined estimate, analysis, or opinion, or if the fee is contingent upon the opinion, conclusion, or valuation reached, or upon the consequences resulting from the appraisal assignment.
    11. Violated the confidential nature of governmental records to which the person gained access through employment or engagement as an appraiser by a governmental agency.
    12. Had entry of a civil judgment against the person on grounds of fraud, misrepresentation, or deceit in the making of an appraisal.
  2. In a disciplinary proceeding based upon a civil judgment, the permittee must be afforded an opportunity to present matters in mitigation and extenuation, but may not collaterally attack the civil judgment.
  3. A signed or unsigned allegation from the public is not a complaint until the board determines there is reasonable cause to initiate a disciplinary proceeding against one or more applicants or permittees.

Source:

S.L. 1991, ch. 469, § 22; 2003, ch. 368, § 6; 2007, ch. 373, § 15; 2015, ch. 301, § 5, effective August 1, 2015.

43-23.3-23. Penalties.

A person acting or purporting to act as an apprentice, licensed, or certified appraiser without holding a permit to practice is guilty of a class A misdemeanor. An appraiser, apprenticed, licensed, or certified in another state, who engages in, advertises, conducts the business of, or acts in any capacity as an appraiser without first obtaining a temporary permit is guilty of a class A misdemeanor. In addition to any other penalty, a person receiving any money or other compensation in violation of this chapter is subject to a penalty of not less than the amount of the sum of money received and not more than three times the sum in the discretion of the court.

Source:

S.L. 1991, ch. 469, § 23; 2001, ch. 383, § 4; 2005, ch. 364, § 6; 2007, ch. 373, § 16.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-23.3-24. Criminal history record checks.

The board shall require an applicant for a permit, under sections 43-23.3-04.1, 43-23.3-07, 43-23.3-08, and 43-23.3-09, and may require a permittee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or permittee.

Source:

S.L. 2013, ch. 324, § 2; 2015, ch. 301, § 6, effective August 1, 2015.

CHAPTER 43-23.4 Real Estate Broker Trust Accounts [Repealed]

Source:

Repealed by S.L. 2021, hb1258, § 18, effective August 1, 2021.

CHAPTER 43-23.5 Appraisal Management Companies

43-23.5-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Appraisal firm” means any person or entity that exclusively employs persons on an employer and employee basis for the performance of real estate appraisal services in the normal course of its business and the real estate appraisal services being performed are in accordance with the uniform standards of professional appraisal practices.
  2. “Appraisal management company” means, in connection with valuing properties collateralizing mortgage loans or mortgages incorporated into a securitization, any external third party that oversees a network or panel of more than fifteen certified or licensed appraisers in this state or twenty-five or more nationally within a given year, that is authorized either by a creditor of a consumer credit transaction secured by a consumer’s principal dwelling or by an underwriter or other principal in the secondary mortgage markets that engages in appraisal management services.
  3. “Appraisal management services” means to, directly or indirectly, perform any of the following functions on behalf of a lender, financial institution, client, or any other person in conjunction with a consumer credit transaction that is secured by a consumer’s primary dwelling:
    1. Administer an appraiser panel.
    2. Recruit, retain, or select appraisers.
    3. Qualify, verify licensing or certification, and negotiate fees and service level expectations with persons who are part of an appraiser panel.
    4. Contract with appraisers to perform appraisal assignments.
    5. Receive an order for an appraisal from one person, and deliver the order for the appraisal to an appraiser that is part of an appraiser panel for completion.
    6. Manage the process of having an appraisal performed, including providing administrative duties, such as receiving appraisal orders and reports, submitting completed appraisal reports to creditors and underwriters, collecting fees from creditors and underwriters for services provided, and reimbursing appraisers for services performed.
    7. Track and determine the status of appraisal orders.
    8. Conduct an appraisal review or other quality control of a completed appraisal prior to the delivery of the appraisal to the person that ordered the appraisal.
    9. Provide a completed appraisal performed by an appraiser to one or more clients.
  4. “Appraisal review” means the act or process of developing and communicating an opinion about the quality of another appraiser’s work that was performed as part of an appraisal assignment related to the appraiser’s data collection, analysis, opinions, conclusions, estimate of value, or compliance with the uniform standards of professional appraisal practice. This term does not include:
    1. A general examination for grammatical, typographical, or other similar errors.
    2. A general examination for completeness, including regulatory client requirements, or both, as specified in the agreement process that does not communicate an opinion.
  5. “Appraiser panel” means a network of licensed or certified appraisers who have:
    1. Responded to an invitation, request, or solicitation from an appraisal management company, in any form, to perform appraisals for persons that have ordered appraisals through the appraisal management company, or to perform appraisals for the appraisal management company directly, on a periodic basis, as requested and assigned by the appraisal management company.
    2. Been selected and approved by an appraisal management company to perform appraisals for any client of the appraisal management company that has ordered an appraisal through the appraisal management company, or to perform appraisals for the appraisal management company directly, on a periodic basis, as assigned by the appraisal management company.
  6. “Board” means the North Dakota real estate appraiser qualifications and ethics board.
  7. “Controlling person” means:
    1. An officer, director, or owner of greater than a ten percent interest of a corporation, partnership, or other business entity seeking to act as an appraisal management company in this state.
    2. An individual employed, appointed, or authorized by an appraisal management company that has the authority to enter a contractual relationship with other persons for performance of services requiring registration as an appraisal management company and has the authority to enter agreements with appraisers for the performance of appraisals.
    3. An individual who possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of an appraisal management company.
  8. “Federal financial institutions regulatory agencies” includes the board of governors of the federal reserve system, the federal deposit insurance corporation, the office of the comptroller of the currency, and the national credit union administration.
  9. “Federally related transaction” means any real estate-related financial transaction which a federal financial institutions regulatory agency or the resolution trust corporation engages in, contracts for, or regulates, and requires the services of an appraiser.
  10. “Real estate-related financial transaction” means any transaction involving:
    1. The sale, lease, purchase, investment in, or exchange of real property, including interests in property or the financing thereof.
    2. The refinancing of real property or interests in real property.
    3. The use of real property or interests in property as security for a loan or investment, including mortgage-backed securities.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-02. Rulemaking authority.

The board shall have the authority to adopt rules that are reasonably necessary to implement, administer, and enforce the provisions of this chapter.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-03. Registration required.

It is unlawful for a person to directly or indirectly engage or to attempt to engage in business as an appraisal management company, to directly or indirectly perform or to attempt to perform appraisal management services, or to advertise or hold itself out as engaging in or conducting business as an appraisal management company without first obtaining a registration issued by the board.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-04. Registration process.

An applicant for registration as an appraisal management company shall submit to the board an application on forms prescribed by the board and pay a fee established by the board. The forms shall require information necessary to determine eligibility for registration.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-05. Consent to service of process.

An applicant for registration as an appraisal management company that is not domiciled in this state shall complete an irrevocable consent to service of process, as prescribed by the secretary of state.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-06. Expiration of registration.

Registrations will expire on September thirtieth of each year. The expiration date of the registration must appear on the registration and no other notice of its expiration need be given to the registrant.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-07. Exemptions.

The provisions of this chapter do not apply to:

  1. An appraisal firm.
  2. A financial institution, including a department or unit within the institution, that is regulated by an agency of this state or the United States government.
  3. A person that enters an agreement with an appraiser for the performance of an appraisal that upon completion results in a report signed by both the appraiser who completed the appraisal and the appraiser who requested completion of the appraisal.
  4. An appraisal management company with an appraisal panel of fewer than sixteen certified or licensed appraisers in this state or fewer than twenty-five nationally within a given year.
  5. An appraisal management company that is a subsidiary owned and controlled by a financial institution that is subject to appraisal independence standards at least as stringent as those under chapter 43-23.5-21, if regulated by an agency of this state, or the Truth in Lending Act [15 U.S.C. 1601 et seq.], if regulated by the United States government.

Source:

S.L. 2013, ch. 325, § 2; 2019, ch. 361, § 1, effective August 1, 2019.

43-23.5-08. Owner requirements.

  1. An appraisal management company applying for, holding, or renewing a registration under this chapter may not be owned by:
    1. An individual who has had an appraiser license or certification in this state or in any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently granted or reinstated.
    2. An entity that is owned by any individual who has had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently granted or reinstated.
  2. Each person that owns more than ten percent of an appraisal management company applying for, holding, or renewing a registration under this chapter:
    1. Must be of good moral character.
    2. Shall submit to a criminal background investigation for an initial application or as required by the board.
  3. Each appraisal management company applying for a registration or for renewal of a registration under this chapter shall certify to the board on a form prescribed by the board that the company has reviewed each entity that owns the appraisal management company and that no entity that owns the appraisal management company is owned by any person that has had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently granted or reinstated.

Source:

S.L. 2013, ch. 325, § 2; 2019, ch. 361, § 2, effective August 1, 2019.

43-23.5-09. Controlling person.

An appraisal management company applying for a registration or for renewal of a registration in this state shall designate one controlling person that shall serve as the main contact for all communication between the board and the company. The controlling person shall:

  1. Remain in good standing in this state or in any other state that the controlling person holds a licensure or certification permit from; however, nothing in this chapter shall require that a designated controlling person hold an appraiser license or certification in any jurisdiction.
  2. Have never had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently reinstated or granted.
  3. Be of good moral character.
  4. Submit to a criminal background investigation for an initial application or as required by the board.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-10. Employee requirements.

An appraisal management company that applies to the board for a registration or to renew a registration to do business in this state as an appraisal management company may not:

  1. Knowingly employ any person for the performance of appraisal or appraisal management services who has had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently reinstated or granted.
  2. Knowingly enter any independent contractor arrangement, whether in verbal, written, or other form, for the performance of appraisal or appraisal management services, with any person that has had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently reinstated or granted.
  3. Knowingly enter any contract, agreement, or other business relationship, whether in verbal, written, or any other form, with any entity that employs, has entered an independent contract arrangement, or has entered any contract, agreement, or other business relationship, whether in verbal, written, or any other form, for the performance of appraisal or appraisal management services, with any person that has had an appraiser license or certification in this state or any other state refused, denied, canceled, revoked, or surrendered in lieu of a pending disciplinary proceeding in any jurisdiction and not subsequently reinstated or granted.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-11. Appraiser engagement.

Before or at the time of placing an assignment with an appraiser on the appraiser panel of an appraisal management company, the appraisal management company shall verify that the appraiser receiving the assignment holds a permit in good standing in this state.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-12. Appraisal review.

Any employee of, or independent contractor to, the appraisal management company that performs an appraisal review for a property located in this state must be:

  1. A certified or licensed appraiser in good standing in this state; or
  2. A certified or licensed appraiser in good standing in another state.

Source:

S.L. 2013, ch. 325, § 2; 2019, ch. 361, § 3, effective August 1, 2019.

43-23.5-13. Verification of licensure or certification.

  1. An appraisal management company registered in this state may not enter any contract or agreement with an appraiser for the performance of appraisals unless the company verifies that the appraiser is licensed or certified in good standing in this state.
  2. An appraisal management company seeking to be registered in this state or to renew a registration in this state shall certify to the board on a form prescribed by the board that the company has a system and process in place to verify that an individual being added to the appraiser panel of the company for appraisal services holds a permit in good standing in this state.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-14. Appraisal management company certification of appraisal review system.

Each appraisal management company seeking to be registered or to renew a registration in this state shall certify to the board on a form prescribed by the board that the company has a system in place to perform an appraisal review of the work product of a statistically significant number of appraisal reports submitted by independent appraisers performing appraisals for the appraisal management company on a periodic basis to validate that the appraisals are being conducted in accordance with the uniform standards of professional appraisal practice, and chapter 43-23.3, and the rules adopted under this chapter. An appraisal management company shall report to the board the results of any appraisal reviews in which an appraisal is found to be substantially noncompliant with the uniform standards of professional appraisal practice.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-15. Retention of records.

  1. Each appraisal management company seeking to be registered or to renew an existing registration in this state shall certify to the board on a form prescribed by the board that the company maintains a detailed record of each service request that the company receives for appraisal of real property located in this state.
  2. An appraisal management company registered in this state shall retain for five years all records required to be maintained under this chapter as described in rules. This five-year period shall commence on the date of the final action by the appraisal management company for each individual transaction or, if the appraisal management company is notified that the transaction is involved in litigation, the five-year period shall commence on the date the litigation is finally disposed.
  3. All records required to be maintained by the registered appraisal management company may be made available for inspection and copying by the board on reasonable notice to the appraisal management company.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-16. Fee disclosure system requirement.

  1. An appraisal management company registered in this state shall disclose to its clients the fees paid for appraisal management services and the fees paid to the independent appraiser for the completion of an appraisal assignment.
  2. An appraisal management company registered in this state shall not prohibit an independent appraiser that is part of an appraiser panel from recording the fee that the appraiser was paid by the appraisal management company for the performance of the appraisal within the communication of the appraisal.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-17. Requirement of appraisal management company’s payment to appraiser.

  1. An appraisal management company shall, except in bona fide cases of breach of contract or substandard performance of services, make payment to an independent appraiser for the completion of an appraisal or valuation assignment within forty-five days of the date on which the appraiser transmits or otherwise provides the completed appraisal or valuation assignment to the company or its assignee unless a mutually agreed-upon alternate arrangement has been previously established.
  2. An appraisal management company seeking to be registered or to renew an existing registration in this state shall certify that the company will require appraisals to be conducted independently as required by the appraisal independence standards under section 129E of the Truth in Lending Act, including the requirements of payment or a reasonable and customary fee to independent appraisers when the appraisal management company is providing services for a consumer credit transaction secured by the principal dwelling of a consumer.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-18. Appraisal management company registration numbers.

  1. The board shall issue a registration number to each appraisal management company that is registered in this state.
  2. The board shall maintain a list of the appraisal management companies that are registered with the board.
  3. An appraisal management company registered in this state shall place its registration number on engagement documents utilized by the appraisal management company for procurement of appraisal services in this state.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-19. Fees — Bonds.

  1. The board may charge the appraisal management company reasonable fees to help offset costs of operating the board. The board shall establish fees by rule.
  2. The board may require by rule a surety bond of not more than twenty-five thousand dollars.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-20. Mandatory reporting.

An appraisal management company that has a reasonable basis to believe an appraiser has failed to comply with applicable laws or rules or has substantially violated the uniform standards of professional appraisal practice shall refer the matter to the board.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-21. Prohibited conduct.

A violation of this section may constitute grounds for discipline against an appraisal management company registered in this state. However, an appraisal management company may request an appraiser provide additional information about the basis for a valuation, correct objective factual errors in an appraisal report, or consider additional appropriate property information. No employee, director, officer, agent, independent contractor, or other third party acting on behalf of an appraisal management company may:

  1. Procure or attempt to procure a registration by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for registration, or through fraud or misrepresentation.
  2. Willfully violate this chapter or rules of the board.
  3. Improperly influence or attempt to improperly influence the development, reporting, result, or a review of an appraisal through intimidation, coercion, extortion, bribery, or any other manner, including:
    1. Withholding payment for appraisal services.
    2. Threatening to exclude an appraiser from future work or threatening to demote or terminate in order to improperly obtain a desired result.
    3. Conditioning payment of an appraisal fee upon the opinion, conclusion, or valuation to be reached.
    4. Requesting an appraiser to report a predetermined opinion, conclusion, or valuation or the desired valuation of any person or entity.
  4. Require an appraiser to provide the appraisal management company with the appraiser’s digital signature or seal.
  5. Alter, amend, or change an appraisal report submitted by an appraiser without the appraiser’s knowledge and written consent.
  6. Except within the first ninety days after an independent appraiser is added to an appraiser page, remove an independent appraiser from an appraiser panel without prior written notice to the appraiser, with the prior written notice including evidence of the following, if applicable:
    1. The appraiser’s illegal conduct.
    2. A violation of the uniform standards of professional appraisal practice, this chapter, or the rules adopted by the board.
    3. Improper or unprofessional conduct.
  7. Require an appraiser to sign any indemnification agreement that would require the appraiser to defend and hold harmless the appraisal management company or any of its agents or employees for any liability, damage, losses, or claims arising out of the services performed by the appraisal management company or its agents, employees, or independent contractors and not the services performed by the appraiser.
  8. Prohibit lawful communications between the appraiser and any other person who the appraiser, in the appraiser’s professional judgment, believes possesses information that would be relevant.
  9. Engage in any other act or practice that impairs or attempts to impair a real estate appraiser’s independence, objectivity, and impartiality.
  10. Submit or attempt to submit false, misleading, or inaccurate information in any application for registration or renewal.
  11. Fail to timely respond to any subpoena or any other request for information.
  12. Fail to timely obey an administrative order of the board.
  13. Fail to fully cooperate in any investigation.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-22. Disciplinary proceedings.

The board may deny, suspend, revoke, impose a monetary penalty, issue a letter of reprimand, refuse to issue or renew the registration of an appraisal management company, or take other disciplinary action when:

  1. The applicant or any partner has, within twelve months preceding the date of the application, violated any provision of this chapter.
  2. The applicant is not of good moral character.
  3. The applicant has been the holder of a registration revoked or suspended for cause, or surrendered in lieu of disciplinary proceedings.
  4. The applicant, in the case of an application for renewal of any registration, would not be eligible for such registration on a first application.
  5. The issuance of the registration applied for would result in a violation of any provision of this chapter or the rules adopted by the board.
  6. In the conduct of affairs under the registration, demonstrated incompetency, or untrustworthiness, or conduct or practices rendering the registrant unfit to carry on appraisal management services or making continuance in the business detrimental to the public interest, or that the licensee is no longer in good faith carrying on appraisal management services, and for this conduct is found by the board to be a source of detriment, injury, or loss to the public.
  7. Committed any act in violation of this chapter.
  8. Violated any rule or regulation adopted by the board in the interest of the public and consistent with the provisions of this chapter.
  9. Procured a registration or a renewal of a registration for the appraisal management company or committed any other act by fraud, misrepresentation, or deceit.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-23. Criminal history background checks.

The board shall require an applicant for registration under section 43-23.5-03, an owner under section 43-23.5-08, or a controlling person under section 43-23.5-09 to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or the regulated individual.

Source:

S.L. 2013, ch. 325, § 2.

43-23.5-24. Penalty.

Any person who performs appraisal management services without a certificate of registration as required by this chapter is guilty of a class A misdemeanor.

Source:

S.L. 2013, ch. 325, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-24 Land Surveyors [Repealed]

[Repealed by S.L. 1967, ch. 352, § 35]

CHAPTER 43-25 Massage Therapists

43-25-01. Short title. [Repealed]

Repealed by S.L. 1997, ch. 375, § 11.

43-25-02. Definitions.

  1. “Board” means the North Dakota board of massage therapy.
    1. “Massage” means the practice of massage therapy by the manual application of a system of structured touch to the soft tissues of the human body, including:
      1. Assessment, evaluation, or treatment;
      2. Pressure, friction, stroking, rocking, gliding, kneading, percussion, or vibration;
      3. Active or passive stretching of the body within the normal anatomical range of movement;
      4. Use of manual methods or mechanical or electrical devices or tools that mimic or enhance the action of human hands;
      5. Use of topical applications such as lubricants, scrubs, or herbal preparations; and
      6. Use of hot or cold applications.
    2. Except as provided in this chapter, “massage” does not include diagnosis or other services that require a license to practice medicine or surgery, osteopathic medicine, chiropractic, occupational therapy, physical therapy, or podiatry and does not include service provided by professionals who act under their state-issued professional license, certification, or registration.
  2. “Massage establishment” means any place of business in which massage is practiced.
  3. “Massage therapist” means an individual licensed to practice massage.
  4. “Remote education” means asynchronous education that is not in person, live, or presented in real time.

Source:

S.L. 1959, ch. 315, § 2; 1983, ch. 486, § 1; 1989, ch. 529, § 1; 1991, ch. 471, § 1; 2001, ch. 384, § 1; 2009, ch. 371, §§ 1, 2; 2017, ch. 303, § 1, effective July 1, 2017.

Cross-References.

Barbering, facial and scalp massage as, see N.D.C.C. § 43-04-01.

Cosmetology, massaging as, see N.D.C.C. § 43-11-01.

43-25-03. Massage therapists to be licensed.

A person may not:

  1. Practice massage, attempt to practice massage, or teach massage techniques, for a fee or gratuity or as a free demonstration, without a license issued under this chapter;
  2. Operate or conduct a massage establishment unless it meets the requirements adopted by the board;
  3. Employ an unlicensed person to perform a massage; or
  4. Use the title “massage therapist” or the abbreviations “L.M.T.” or “M.T.” or terms of similar meaning without a license issued by the board.

Source:

S.L. 1959, ch. 315, § 3; 1983, ch. 486, § 2; 1997, ch. 375, § 1; 2001, ch. 384, § 2; 2009, ch. 371, § 3.

Collateral References.

Regulation of masseurs, 17 A.L.R.2d 1183.

Validity and construction of statute or ordinances forbidding treatment in health clubs or massage salons by persons of the opposite sex, 51 A.L.R.3d 936.

43-25-04. Exemptions.

The following persons are exempt from this chapter:

  1. Schools that furnish massage services to their student athletes.
  2. Any student of a school of massage who is practicing massage in the course of fulfilling a required massage therapy practicum under the direct supervision of a licensed massage therapist or in the course of participating in a school-supervised student massage clinic under the direct supervision of a licensed massage therapist, a school may charge a fee and students may accept tips under a policy set by the school. Students may practice homework unsupervised on other students, family, or friends, but no fee or tip may be charged or accepted. These massages may only be performed at the school or at the residence of the student, family member, or friend.
  3. Any individual who is engaged in a profession or occupation for which the individual is licensed by this state, as long as the individual’s activities are performed in the course of the bona fide practice of the individual’s profession or occupation and as long as the individual does not represent to the public that the individual is a massage therapist or is engaged in the practice of massage and does not perform massage while working in a massage establishment.
  4. A health spa or similar business to the extent the spa or business is performing superficial applications used for beautification or health of the skin, including salt glows and contouring.
  5. Any individual instructor demonstrating massage techniques as a component of a board-approved seminar.
  6. Any individual practicing healing by manipulating the energy field or the flow of energy of the human body by means other than the manipulation of the soft tissues of the human body, provided that the individual’s services are not designated or implied to be massage or massage therapy. For purposes of this subsection, a light touch or tap is not a manipulation of the soft tissues of the human body.

Source:

S.L. 1959, ch. 315, § 4; 1983, ch. 486, § 3; 1993, ch. 439, § 14; 1999, ch. 386, §§ 1, 2; 2001, ch. 384, § 3; 2009, ch. 371, § 4; 2011, ch. 318, § 1; 2013, ch. 326, § 1.

43-25-05. Board of massage therapy — Terms.

  1. The governor shall appoint a board of massage therapy, to consist of five members.
    1. Three members of the board must be massage therapists who are licensed in this state and annually work at least five hundred hours practicing massage in this state and have done so for at least the previous three years. These members must be appointed for terms of three years, staggered so that the term of one member expires each year.
    2. One member of the board must be a consumer member. To qualify as a consumer member an individual may not be or have been a massage therapist, may not have an immediate family member who is a massage therapist, may not be an owner of or have any affiliation with a massage school, may not be a current or past member of any other health care licensing entity, may not have a fiduciary obligation to a facility rendering health care services, may not have a financial interest in the rendering of health care services, and may not have a direct and substantial financial interest in massage therapy. This member must be appointed for a two-year term, staggered so that the term expires with a licensed board member but not with the instructor board member.
    3. One member of the board must be a current or former massage therapy instructor of a massage therapy program that meets the standards set by the board. This member must be appointed for a term of two years, staggered so that the term expires with a licensed board member but not with the consumer board member.
    4. Each member of the board holds office until that member’s successor is appointed and qualified. Any member appointed to a term beginning after June 30, 2013, may only serve for a total of six consecutive years, after which that member may not be reappointed unless a period of three years has passed since that member last served on the board.
  2. Within one month after appointment of a new member, the board shall meet at some convenient place within the state and shall annually elect a president, vice president, secretary, and treasurer. The treasurer must be bonded in the sum of at least fifty thousand dollars for the faithful discharge of the treasurer’s duties.
  3. Each member of the board must be a citizen of North Dakota and the United States.

Source:

S.L. 1959, ch. 315, § 5; 1983, ch. 486, § 4; 1989, ch. 529, § 2; 1997, ch. 375, § 2; 2001, ch. 384, § 4; 2009, ch. 371, § 5; 2013, ch. 326, § 2; 2015, ch. 302, § 2, effective July 1, 2015; 2017, ch. 303, § 2, effective July 1, 2017.

43-25-05.1. Powers and duties of the board.

The board has the following powers and duties:

  1. The board may adopt and enforce rules as necessary to implement this chapter.
  2. The board periodically shall inspect or cause to be inspected all massage establishments. The board and the board’s agents may enter and inspect any massage establishment at any time during which the establishment is open for the transaction of business.
  3. In accordance with the guidelines established for reports under section 54-06-04, the board shall prepare and submit a biennial report detailing income and expenses and a list of licensed massage therapists.
  4. The board may hire office personnel deemed necessary by the board for carrying on the board’s official duties and shall set the compensation to be paid to the personnel.

Source:

S.L. 2001, ch. 384, § 6; 2009, ch. 371, § 6; 2015, ch. 302, § 3, effective July 1, 2015; 2017, ch. 303, § 3, effective July 1, 2017; 2019, ch. 362, § 1, effective August 1, 2019.

43-25-06. Removal of members of board of massage therapy — Officers of the board.

The governor may remove from office a member of the board for failure to maintain the qualifications for appointment, for neglect of duties as required by this chapter, for malfeasance in office and incompetency, or for unprofessional conduct. The governor may fill any vacancy caused by removal of any member of the board, on the member’s resignation or death.

Source:

S.L. 1959, ch. 315, § 6; 1961, ch. 291, § 1; 1975, ch. 258, § 24; 1983, ch. 486, § 5; 2001, ch. 384, § 5; 2009, ch. 371, § 7; 2015, ch. 302, § 4, effective July 1, 2015.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

43-25-07. Requisites for licensure and examination — Subjects — Minimum passing grade — Fee for re-examination.

  1. Any person who is eighteen years of age or more and of good moral character and temperate habits is entitled to apply to the board. An applicant may receive a license from the board as a massage therapist if the applicant:
    1. Presents a diploma or credentials issued by an approved massage therapy education program that meets the standards set by the board;
    2. Receives a passing score on an examination approved by the board; and
    3. Pays the required fees, which must accompany the application to the board.
  2. Any applicant failing to obtain licensure within one year of the initial license or relicense application is entitled to reapply within six months after notification that the application was rejected, upon payment of a fee of fifty dollars or a lesser amount established by the board. Two applications exhaust the privilege under the original application.
  3. Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines the offense has a direct bearing upon a person’s ability to serve the public as a massage therapist or the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. The board may approve alternate educational methods or methodology for applicants to complete educational requirements if the applicant has graduated from a school of massage that is accredited by a national or regional accrediting agency recognized by the United States department of education.

Source:

S.L. 1959, ch. 315, § 7; 1973, ch. 120, § 50; 1977, ch. 130, § 43; 1981, ch. 435, § 11; 1983, ch. 486, § 6; 1989, ch. 529, § 3; 1997, ch. 375, § 3; 1999, ch. 387, § 1; 2001, ch. 384, § 7; 2009, ch. 371, § 8; 2013, ch. 326, § 3; 2017, ch. 303, § 4, effective July 1, 2017.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Reciprocity as to nonresidents, see N.D.C.C. § 43-25-18.

43-25-08. Fee for license.

The application fee to receive a license as a massage therapist is one hundred fifty dollars or a lesser amount established by the board.

Source:

S.L. 1959, ch. 315, § 8; 1983, ch. 486, § 7; 1989, ch. 529, § 4; 1997, ch. 375, § 4; 2001, ch. 384, § 8; 2017, ch. 303, § 5, effective July 1, 2017.

43-25-08.1. Criminal history record checks.

The board shall require an applicant under this chapter to submit to a statewide and nationwide criminal history record check. The board may require a licensee under this chapter to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or licensee.

History. S.L. 2015, ch. 302, § 5, effective July 1, 2015.

43-25-09. License — Display — Renewal — Renewal fee.

  1. Each license must be conspicuously displayed at the place of practice.
  2. Except as otherwise provided under this subsection, twenty-four hours of continuing education, or equivalent college credits, submitted every two years is required for renewal of the license. Of the twenty-four hours, twelve hours must be classroom, hands-on hours. For the first renewal after becoming licensed in this state, a minimum of three hours of the required twenty-four hours must be ethics education. If an applicant for renewal is in good standing and has been actively practicing massage for the fifteen years immediately preceding the renewal, six hours of continuing education, or equivalent college credits, submitted every two years is required for renewal of the license. If an applicant for renewal is in good standing and has been actively practicing massage for the twenty-five years immediately preceding the renewal, three hours of continuing education, or equivalent college credits, submitted every two years is required for renewal of the license. The board may accept continuing education attained by remote means. No more than ten hours of a licensee’s renewal hours may be by remote means. To qualify as continuing education, the remote education must be board-approved for content and suitability as defined in this chapter.
    1. Licensees with odd-numbered licenses shall report required continuing education on or before February twenty-eighth of each odd-numbered year and pay a required renewal fee of two hundred dollars or a lesser amount established by the board.
    2. Licensees with even-numbered licenses shall report required continuing education on or before February twenty-eighth of each even-numbered year and pay a required renewal fee of two hundred dollars or a lesser amount established by the board.
    3. Licensed individuals during their initial licensure period are not required to report hours of continuing education. Thereafter, the licensees shall report continuing education pursuant to subdivisions a and b.
    4. The board may grant an individual waiver based on health issues or other good cause deemed sufficient by the board.
  3. If the board reasonably believes a massage therapist or applicant has a physical or mental condition jeopardizing the health of those who seek massage from the individual, the board may require the individual to have an appropriate examination by a qualified examiner approved by the board. If the individual has had or has any communicable disease deemed sufficient to disqualify the applicant to practice massage in the state, the board shall deny a license until the individual furnishes due proof of being physically and mentally competent and sound.
  4. A holder of an expired license may within two years from the date of its expiration have the license renewed upon payment of the required renewal fee. The board may require a new certificate of physical examination and evidence of completion of any required continued educational hours.
  5. All licenseholders must be designated as licensed massage therapists and may not use any title or abbreviation without the designation “massage therapist”.
  6. An applicant with training and credentials outside of the United States must submit at the applicant’s own expense qualifications, credentials, and work experience to one of the following credentialing agencies for review:
    1. International education research foundation;
    2. International consultants of Delaware, inc.; or
    3. A credentialing agency approved by the board.
  7. Failure to have a review completed by a credentialing agency under subsection 6 and the massage therapy application procedures indemnified by the board may result in the board denying the application. The board may accept or refuse any recommendation made by the credentialing agency.

Source:

S.L. 1959, ch. 315, § 9; 1983, ch. 486, § 8; 1989, ch. 529, § 5; 1997, ch. 375, § 5; 1999, ch. 278, § 71; 2001, ch. 120, § 1; 2001, ch. 384, § 9; 2003, ch. 369, § 1; 2009, ch. 371, § 9; 2013, ch. 326, § 4; 2015, ch. 302, § 6, § 6, effective August 1, 2015; 2017, ch. 303, § 6, effective July 1, 2017.

43-25-10. Disciplinary actions — Complaints.

  1. The license of a massage therapist may be denied, revoked, suspended, or placed on probation for any of the following grounds:
    1. The licensee is guilty of fraud in the practice of massage or fraud or deceit in admission to the practice of massage.
    2. The licensee has been convicted of an offense determined by the board to have a direct bearing upon a person’s ability to serve the public as a massage therapist, or, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1. The conviction of an offense includes conviction in any jurisdiction in the United States of any offense, which if committed within this state would constitute an offense under this state’s laws.
    3. The licensee is engaged in the practice of massage under a false or assumed name, or is impersonating another practitioner of a like or different name.
    4. The licensee is addicted to the habitual use of intoxicating liquors, or other legal or illegal drugs, to the extent the licensee is compromised or impaired from performing the professional duties of a massage therapist or is under the influence while assessing, treating, or seeing a client.
    5. The licensee is guilty of untrue, fraudulent, misleading, or deceptive advertising, the licensee prescribes medicines, drugs, or the licensee infringes on any other licensed profession.
    6. The licensee is guilty of gross negligence in the practice of massage, or is guilty of employing, allowing, or permitting any unlicensed person to perform massage in the licensee’s establishment.
    7. The licensee has violated this chapter or any rule adopted by the board.
  2. A licensee who violates this chapter or any rule adopted by the board may be assessed a civil penalty of up to two hundred dollars.
  3. A complaint may be submitted to the board by any person or on its own motion. A complaint must be signed by the complainant. The president may initiate an investigation of the complaint and report to the board.
  4. Any hearing regarding a disciplinary action or a denial of a license must be held pursuant to chapter 28-32.

Source:

S.L. 1959, ch. 315, § 10; 1977, ch. 130, § 44; 1983, ch. 486, § 9; 1997, ch. 375, § 6; 2001, ch. 384, § 10; 2009, ch. 371, § 10; 2013, ch. 326, § 5; 2015, ch. 302, § 7, effective July 1, 2015.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Regulation of masseurs, 17 A.L.R.2d 1183.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-25-11. Provisions for hearing — Notice. [Repealed]

Repealed by S.L. 2001, ch. 384, § 15.

43-25-12. Power of board to revoke, suspend, or annul licenses. [Repealed]

Repealed by S.L. 2001, ch. 384, § 15.

43-25-13. Records to be kept by the board.

The board may implement rules for record retention. Licensee information is retained by the board from the date a license is granted until five years after inactive status. Any official entry or a certificate of the absence of information, certified under the hand of the secretary and the seal of the board, must be admitted as evidence in any of the courts of this state. The secretary shall furnish to any person a certified copy of any record upon payment of a fee of ten dollars plus twenty-five cents per page copied.

Source:

S.L. 1959, ch. 315, § 13; 1989, ch. 529, § 6; 1997, ch. 375, § 9; 2001, ch. 384, § 11; 2003, ch. 459, § 3; 2009, ch. 371, § 11; 2017, ch. 303, § 7, effective July 1, 2017.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-25-14. Compensation of board members — Clerks.

The board members are entitled to receive compensation in an amount to be established by rule not to exceed one hundred dollars per day or prorated for partial days the member is actually engaged in the performance of other meetings and official duties and payment for mileage and travel expenses as provided in sections 44-08-04 and 54-06-09.

Source:

S.L. 1959, ch. 315, § 14; 1989, ch. 529, § 7; 2001, ch. 384, § 12; 2009, ch. 371, § 12; 2015, ch. 302, § 8, effective July 1, 2015.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expense of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-25-15. Disposition of money received by the board. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-25-16. Other laws unaffected by this chapter. [Repealed]

Repealed by S.L. 2001, ch. 384, § 15.

43-25-17. Practitioners at time chapter becomes effective. [Repealed]

Repealed by S.L. 1961, ch. 291, § 2.

43-25-18. Reciprocity.

  1. Any individual who has been duly licensed in another state, territory, or jurisdiction of the United States, to practice massage, may upon paying a fee of one hundred fifty dollars or a lesser fee set by the board be granted a license to practice in this state without being required to take an examination, if the applicant provides evidence satisfactory to the board the applicant:
    1. Is licensed in good standing in any other state, territory, or jurisdiction of the United States;
    2. Actively practiced for at least two of the last three years;
    3. Graduated from a school of massage or massage therapy program approved by the board which may be proven by presentation of a diploma or credentials;
    4. Passed an examination acceptable to the board;
    5. A massage license granted to the applicant in any other state, territory, or jurisdiction is not subject to suspension, revocation, or otherwise restricted in any manner for disciplinary purposes; and
  2. To qualify for licensure under this section, an applicant shall submit to a statewide and nationwide criminal history record check as required by section 43-25-08.1.

Source:

S.L. 1959, ch. 315, § 18; 1997, ch. 375, § 10; 2001, ch. 384, § 13; 2009, ch. 371, § 13; 2013, ch. 326, § 6; 2015, ch. 302, § 9, effective July 1, 2015; 2017, ch. 303, § 8, effective July 1, 2017.

43-25-19. Penalty for violation.

Any person violating section 43-25-03 without being exempt under section 43-25-04 is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the board may initiate a civil action in a court of competent jurisdiction as necessary to enforce this chapter or any rule adopted under this chapter, including an injunction to restrain a violation, without proof of actual damages sustained by any person.

Source:

S.L. 1959, ch. 315, § 19; 1975, ch. 106, § 497; 2001, ch. 384, § 14; 2009, ch. 359, § 7.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-26 Physical Therapists [Repealed]

[Repealed by S.L. 2005, ch. 365, § 3]

CHAPTER 43-26.1 Physical Therapists

43-26.1-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Board” means the North Dakota board of physical therapy.
  2. “Competence” is the application of knowledge, skills, and behaviors required to function effectively, safely, ethically, and legally within the context of the patient’s or client’s environment.
  3. “Continuing competence” is the lifelong process of maintaining and documenting competence through ongoing self-assessment, development, and implementation of a personal learning plan along with subsequent reassessment.
  4. “Direct supervision” means the supervising physical therapist is physically present on the premises and immediately available for direction and supervision, has direct contact with the patient during each visit, and completes all components of care requiring skilled therapy services. Telehealth does not meet the requirement for direct supervision.
  5. “Electronic communications” means the science and technology of communication over a distance by electronic transmission of impulses, including activities involving or using electronic communications to store, organize, send, retrieve, and convey information.
  6. “Examination” means a national examination approved by the board for the licensure of a physical therapist or the licensure of a physical therapist assistant.
  7. “General supervision” means the supervising physical therapist is onsite and present where services are provided or is immediately available to the physical therapist assistant being supervised by means of electronic communications, maintains continual involvement in the appropriate aspects of patient care, and has primary responsibility for all patient care services rendered by a physical therapist assistant.
  8. “Manual therapy” means the use of techniques such as mobilization or manipulation, manual lymphatic drainage, and manual traction on one or more regions of the body.
  9. “Onsite supervision” means the supervising physical therapist is onsite and present in the department or facility where services are provided, is immediately available to the individual being supervised, and maintains continued involvement in appropriate aspects of each treatment session in which a student physical therapist or a student physical therapist assistant is involved in components of care.
  10. “Physical therapist” means an individual licensed under this chapter to practice physical therapy. The term “physiotherapist” is synonymous with “physical therapist” under this chapter.
  11. “Physical therapist assistant” means an individual licensed under this chapter and who assists the physical therapist in selected components of physical therapy intervention.
  12. “Physical therapy” means the care and services provided by or under the direction and supervision of a physical therapist licensed under this chapter.
  13. “Physical therapy aide” means an individual trained under the direction of a physical therapist who performs designated and supervised routine tasks related to physical therapy.
  14. “Practice of physical therapy” means:
    1. Examining, evaluating, and testing individuals with mechanical, physiological, and developmental impairments, functional limitations in movement and mobility, and disabilities or other health and movement-related conditions to determine a diagnosis for physical therapy, prognosis, and plan of therapeutic intervention, and to assess the ongoing effects of intervention. The term includes ordering musculoskeletal imaging consisting of plain film radiographs to be performed by a professional authorized by chapter 43-62 and interpreted by a licensed physician trained in radiology interpretation, and using these results to determine if a referral to another health care provider is necessary or indicates the necessary treatment is within the physical therapist’s scope of practice.
    2. Alleviating impairments, functional limitations in movement and mobility, and disabilities by designing, implementing and modifying therapeutic interventions that may include therapeutic exercise; neuromuscular education; functional training related to positioning, movement, and mobility in self-care and in-home, community, or work integration or reintegration; manual therapy; therapeutic massage; prescription, application and, as appropriate, fabrication of assistive, adaptive, orthotic, prosthetic, protective, and supportive devices and equipment related to positioning, movement, and mobility; airway clearance techniques; integumentary protection and repair techniques; debridement and wound care; physiotherapy; physical agents or modalities; mechanical and electrotherapeutic modalities; and patient-related instruction.
    3. Engaging as a physical therapist in reducing the risk of injury, impairment, functional limitation and disability, including the promotion and maintenance of fitness, health, and wellness in populations of all ages.
    4. Engaging as a physical therapist in administration, consultation, education, and research.
  15. “Restricted license” for a physical therapist or physical therapist assistant means a license on which the board places restrictions or conditions, or both, as to scope of practice, place of practice, supervision of practice, duration of licensed status, or type or condition of patient or client to whom the licensee may provide services.
  16. “Telehealth” is the use of electronic communications to provide and deliver health-related information and health care services, including physical therapy related information and services, over any distance. Telehealth encompasses health care and health promotion activities, including education, advice, reminders, interventions, and the monitoring of interventions.
  17. “Testing” means standard methods and techniques used to gather data about the patient.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 1, effective July 1, 2019; 2021, ch. 317, § 1, effective August 1, 2021.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

Collateral References.

Licensing and regulation of practice of physical therapy, 8 A.L.R.5th 825.

43-26.1-02. Board of physical therapy — Members — Appointments — Vacancies.

  1. The board of physical therapy shall administer this chapter. The board consists of three licensed physical therapists, one licensed physician, one licensed physical therapist assistant, and two public members. The governor shall appoint the board members for a term of five years, staggered so the terms of no more than two members expire each year. An individual may not serve more than two full consecutive terms. Terms begin on July first. Appointments to the board to fill a vacancy occurring for other than the expiration of a term may only be made for the remainder of the unexpired term.
  2. Each physical therapist and physical therapist assistant appointed must have had at least three years of physical therapy experience in North Dakota immediately before appointment and must practice in North Dakota during the term. The physician appointed must have practiced medicine at least three years in North Dakota immediately before appointment and must practice in North Dakota during the term. Each board member shall take and file with the secretary of state the oath of office prescribed for state officials before entering upon the discharge of the member’s duties.
  3. Each board member is entitled to mileage reimbursement as provided in section 54-06-09 and reimbursement for actual and necessary expenses in the amounts provided by law for state officers in section 44-08-04.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 2, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-03. Powers of the board.

The board may:

  1. Evaluate the qualifications of applicants for licensure.
  2. Provide for the examination of physical therapists and physical therapist assistants and adopt passing scores for the examinations.
  3. Issue licenses to persons who meet the requirements of this chapter.
  4. Regulate the practice of physical therapy by interpreting and enforcing this chapter.
  5. Adopt and revise rules consistent with this chapter.
  6. Meet at least annually and other times as deemed necessary. A majority of board members constitutes a quorum for the transaction of business.
  7. Establish mechanisms for assessing the continuing professional competence of physical therapists and physical therapist assistants to engage in the practice of physical therapy.
  8. Establish and collect fees for sustaining the necessary operation and expenses of the board.
  9. Elect officers from its members necessary for the operations and obligations of the board. Terms of office are one year.
  10. Provide for the timely orientation and training of new professional and public appointees to the board regarding board licensing and disciplinary procedures, this chapter, and board rules, policies, and procedures.
  11. Maintain a current list of all individuals regulated under this chapter. This contact information includes the individual’s name, current business address, business telephone number, electronic mail address, and board license number.
  12. Provide information to the public regarding the complaint process.
  13. Employ necessary personnel to carry out the administrative work of the board.
  14. Enter contracts for services necessary for enforcement of this chapter.
  15. Report final disciplinary action taken against a licensee to a national disciplinary database recognized by the board or as required by law.
  16. Review and investigate all complaints the board receives against licensees concerning violations of this chapter. The board shall keep all information relating to the receipt and investigation of the complaint confidential until the information is disclosed in the course of the investigation or any subsequent proceeding or until disclosure is required by law. However, patient records, including clinical records, files, any report or oral statement relating to diagnostic findings of a patient or treatment of a patient, any information from which a patient or the patient’s family might be identified, or information received and records or reports kept by the board as a result of its investigation, are confidential.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 3, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-04. Qualifications for licensure.

  1. Before being approved for a license as a physical therapist or physical therapist assistant, an applicant:
    1. Must be of good moral character.
    2. Shall complete the application process.
    3. Must be a graduate of a professional physical therapist or physical therapist assistant education program accredited by a national accreditation agency approved by the board.
    4. Shall pass the examination approved by the board.
  2. An applicant for a license as a physical therapist or a physical therapist assistant who has been educated outside of the United States:
    1. Must be of good moral character.
    2. Shall complete the application process.
    3. Shall provide satisfactory evidence the applicant’s education is substantially equivalent to the requirements of a physical therapist or physical therapist assistant educated in an accredited education program as determined by the board. For the purpose of this section, “substantially equivalent” means an applicant for licensure educated outside the United States must have:
      1. Graduated from a physical therapist or physical therapist assistant education program that prepares the applicant to engage in the practice of physical therapy without restriction.
      2. Provided written proof the applicant’s school of physical therapy or physical therapy assistant education is recognized by its ministry of education or other appropriate education agency.
      3. Undergone a credentials evaluation as directed by the board determining the candidate has met uniform criteria for educational requirements as further established by rule.
      4. Completed any additional education or clinical experience as required by the board.
    4. Shall pass the board-approved English proficiency examinations if the applicant’s native language is not English.
    5. Shall pass the examination approved by the board.
    6. Shall obtain a criminal background check as referenced in section 43-26.1-05.1 and required under article III of chapter 43-26.2.
  3. Notwithstanding the provisions of subsection 2, if the applicant is educated outside the United States and is a graduate of a professional physical therapist or physical therapist assistant educational program accredited by a national accrediting agency approved by the board, the board may waive the requirements in subdivision c of subsection 2.

Source:

S.L. 2005, ch. 365, § 2; 2013, ch. 327, § 1; 2019, ch. 363, § 4, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

Collateral References.

Licensing and regulation of practice of physical therapy, 8 A.L.R.5th 825.

43-26.1-05. Application and examination.

  1. An applicant for licensure shall file a complete application as required by the board. The applicant shall include application fees as provided in this chapter and under applicable rules.
  2. The board shall provide examinations at times and places the board determines. The board shall determine the passing score.
  3. An applicant for licensure as a physical therapist may take the examination after the application process has been completed. The examination must test entry-level competence related to physical therapy theory, examination and evaluation, diagnosis, prognosis, treatment intervention, prevention, and consultation.
  4. An applicant for licensure as a physical therapist assistant may take the examination after the application process has been completed. The examination must test for requisite knowledge and skills in the technical application of physical therapy services.
  5. An applicant for licensure who does not pass the examination on the first attempt may retake the examination, not to exceed six attempts. There is a limit of two attempts for scores below four hundred.
  6. If the board determines an applicant or examinee has engaged, or has attempted to engage, in conduct that subverts or undermines the integrity of the examination process, the board may disqualify the applicant or examinee from taking the examination.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 5, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-05.1. Use of criminal history record checks.

The board may require a physical therapy or physical therapy assistant applicant, or a licensee under investigation, to submit to a statewide and nationwide criminal history record check, including a fingerprint-based criminal history background check. The criminal history record check must be conducted in the manner provided by section 12-60-24. The criminal history record check is an exempt record but may not be disseminated by the board to the physical therapy compact commission or a similar entity. All costs associated with a criminal history record check performed under this section are the responsibility of the applicant or licensee.

Source:

S.L. 2017, ch. 96, § 2, effective August 1, 2017; 2017, ch. 14, § 23, effective July 1, 2017.

Note.

Section 43-26.1-05.1 was impacted 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 23 of Chapter 14, Session Laws 2017, House Bill 1015; and Section 2 of Chapter 96, Session Laws 2017, Senate Bill 2131.

43-26.1-06. Licensure by endorsement.

The board shall issue a license to a physical therapist or physical therapist assistant who has a license in good standing from another jurisdiction that imposes requirements for obtaining and maintaining a license which are at least as stringent as the requirements imposed in this state.

Source:

S.L. 2005, ch. 365, § 2.

43-26.1-07. Exemptions from licensure.

  1. This chapter does not restrict a person licensed under any other law of this state from engaging in the profession or practice for which that person is licensed as long as that person does not represent, imply, or claim that that person is a physical therapist, physical therapist assistant, or a provider of physical therapy.
  2. The following persons are exempt from the licensure requirements of this chapter when engaged in the following activities:
    1. A person in a professional education program approved by the board who is satisfying supervised clinical education requirements related to the person’s physical therapist or physical therapist assistant education while under onsite supervision of a physical therapist.
    2. A physical therapist who is practicing in the United States armed services, United States public health service, or veterans administration pursuant to federal regulations for state licensure of health care providers.
    3. A physical therapist who is licensed in another jurisdiction of the United States or credentialed to practice physical therapy in another country if that person is teaching, demonstrating, or providing physical therapy in connection with teaching or participating in an educational seminar in the state of no more than sixty days in a calendar year.
    4. A physical therapist who is licensed in another United States jurisdiction if that person is providing services in accordance with section 43-51-03.
    5. A physical therapist who is licensed in another United States jurisdiction or credentialed in another country, if that person by contract or employment is providing physical therapy to individuals affiliated with or employed by established athletic teams, athletic organizations, or performing arts companies temporarily practicing, competing, or performing in the state for no more than sixty days in a calendar year.
    6. A physical therapist assistant who is licensed in another United States jurisdiction and is assisting a physical therapist engaged specifically in activities related to subdivisions b, c, and e is exempt from the requirements of licensure under this chapter.

Source:

S.L. 2005, ch. 365, § 2.

43-26.1-08. License renewal — Changes.

A licensee shall renew the license annually pursuant to board rules. A licensee who fails to renew the license on or before the expiration date may not practice as a physical therapist or physical therapist assistant in this state, and may be subject to a late renewal fee. A licensee shall report to the board a name change and other changes in contact information within thirty days of the date of change.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 6, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-09. Reinstatement of license.

  1. The board may reinstate an expired license upon payment of a renewal fee and reinstatement fee.
  2. If a physical therapist’s or physical therapist assistant’s license has expired for more than three consecutive years, that person shall reapply for licensure and shall demonstrate to the board’s satisfaction competence to practice physical therapy, by one or more of the following as determined by the board:
    1. Practice for a specified time under a restricted license.
    2. Complete prescribed remedial courses.
    3. Complete continuing competence requirements for the period of the expired license.
    4. Pass an examination.

Source:

S.L. 2005, ch. 365, § 2.

43-26.1-10. Fees.

The board shall establish and collect fees not to exceed:

  1. Two hundred dollars for an application for an original license. This fee is nonrefundable.
  2. One hundred dollars for an annual renewal of the license.
  3. Two hundred dollars for an application for reinstatement of a license.
  4. Fifty dollars for late renewal of a license.
  5. Forty dollars for the compact privilege.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 7, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-11. Patient care management.

  1. A physical therapist shall manage all aspects of each patient’s physical therapy. A physical therapist shall provide:
    1. Each patient’s initial evaluation and documentation.
    2. Periodic re-evaluation and documentation of each patient.
    3. The documented discharge of the patient, including the response to therapeutic intervention at the time of discharge.
  2. If the diagnostic process reveals findings outside the scope of a physical therapist’s knowledge, experience, or expertise, a physical therapist shall inform the patient or client and refer the patient or client to an appropriate practitioner.
  3. A physical therapist shall assure the qualifications of a physical therapist assistant and physical therapy aide under the physical therapist’s direction and supervision.
  4. For each patient on each date of service, a physical therapist shall provide all of the therapeutic intervention that requires the expertise of a physical therapist and shall determine the use of physical therapist assistants that provide for the delivery of care that is safe, effective, and efficient.
    1. A physical therapist assistant shall work under the supervision of a physical therapist. A physical therapist assistant may document care provided without the cosignature of the supervising physical therapist.
    2. A physical therapist may use physical therapy aides for designated routine tasks. A physical therapy aide shall work under the direct supervision of a physical therapist. This supervision may extend to general supervision of the physical therapy aide only when the physical therapy aide is accompanying and working directly with a physical therapist assistant with a specific patient or when performing non-patient-related tasks.
  5. A physical therapist’s or physical therapist assistant’s responsibility for patient care management includes accurate documentation and billing of the services provided.
  6. The physical therapist shall communicate the overall plan of care with the patient or the patient’s legally authorized representative.

Source:

S.L. 2005, ch. 365, § 2; 2013, ch. 327, § 2; 2019, ch. 363, § 8, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-11.1. Ordering imaging.

A physical therapist may order musculoskeletal imaging consisting of plain film radiographs if the physical therapist holds a clinical doctorate degree in physical therapy or has completed a board-approved formal medical imaging training program.

Source:

S.L. 2021, ch. 317, § 2, effective August 1, 2021.

43-26.1-12. Consumers’ rights.

  1. The public shall have access to the following information:
    1. A list of physical therapists that includes place of practice, license number, date of license, and expiration and status of license.
    2. A list of physical therapist assistants licensed in the state, including place of employment, license number, date of license, and expiration and status of license.
    3. The board’s address and telephone number.
  2. A patient has freedom of choice in selection of services and products.
  3. Information relating to the physical therapist-patient relationship is confidential and may not be communicated to a third party who is not involved in that patient’s care without the written authorization of the patient or as permitted by law.
  4. Any person may submit a complaint to the board regarding any licensee, or any other person potentially in violation of this chapter.

Source:

S.L. 2005, ch. 365, § 2.

43-26.1-13. Grounds for disciplinary actions.

The board may refuse to license any physical therapist or physical therapist assistant, may discipline, or may suspend or revoke the license of any physical therapist or physical therapist assistant for any of the following grounds:

  1. Violating any provision of this chapter, board rules, or a written order of the board.
  2. Practicing or offering to practice beyond the scope of the practice of physical therapy.
  3. Failing to refer a patient or client to an appropriate practitioner if the diagnostic process reveals findings that are outside the scope of a physical therapist’s knowledge, experience, or expertise.
  4. Obtaining or attempting to obtain a license by fraud or misrepresentation.
  5. Engaging in the performance of substandard physical therapy care due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the patient is established.
  6. Engaging in the performance of substandard care by a physical therapist assistant, including exceeding the authority to perform components of intervention selected by the supervising physical therapist regardless of whether actual injury to the patient is established.
  7. Failing to supervise physical therapist assistants or physical therapy aides in accordance with this chapter and board rules.
  8. A determination by the board that a licensee’s conviction of an offense has a direct bearing on the licensee’s ability to serve the public as a physical therapist or physical therapist assistant or that, following conviction of any offense, the holder is not sufficiently rehabilitated as provided under section 12.1-33-02.1.
  9. Practicing as a physical therapist or working as a physical therapist assistant when physical or mental abilities are impaired by the use of controlled substances or other habit-forming drugs, chemicals, alcohol, or by other causes.
  10. Having had a license revoked or suspended, other disciplinary action taken, or an application for licensure refused, revoked, or suspended by the proper authorities of another state, territory, or country.
  11. Engaging in sexual misconduct. For the purpose of this subsection sexual misconduct includes:
    1. Engaging in or soliciting sexual relationships, whether consensual or nonconsensual, while a physical therapist or physical therapist assistant-patient relationship exists, except with a spouse.
    2. Making sexual advances, requesting sexual favors, or engaging in other verbal conduct or physical contact of a sexual nature with patients or clients.
    3. Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.
  12. Failing to adhere to the standards of ethics of the physical therapy profession adopted by rule by the board.
  13. Charging unreasonable or fraudulent fees for services performed or not performed.
  14. Making misleading, deceptive, untrue, or fraudulent representations in violation of this chapter or in the practice of the profession.
  15. Having been adjudged mentally incompetent by a court.
  16. Aiding and abetting a person who is not licensed in this state in the performance of activities requiring a license.
  17. Failing to report to the board, when there is direct knowledge, any unprofessional, incompetent, or illegal acts that appear to be in violation of this chapter or any rules established by the board.
  18. Interfering with an investigation or disciplinary proceeding by failure to cooperate, by willful misrepresentation of facts, or by the use of threats or harassment against any patient or witness to prevent that patient or witness from providing evidence in a disciplinary proceeding or any legal action.
  19. Failing to maintain adequate patient records. For the purposes of this subsection, “adequate patient records” means legible records that contain at a minimum sufficient information to identify the patient, an evaluation of objective findings, a diagnosis, a plan of care, a treatment record, and a discharge plan.
  20. Failing to maintain patient confidentiality without the written authorization of the patient or unless otherwise permitted by law. All records used or resulting from a consultation under section 43-51-03 are part of a patient’s records and are subject to applicable confidentiality requirements.
  21. Promoting any unnecessary device, treatment intervention, or service resulting in the financial gain of the practitioner or of a third party.
  22. Providing treatment intervention unwarranted by the condition of the patient or continuing treatment beyond the point of reasonable benefit.
  23. Participating in underutilization or overutilization of physical therapy services for personal or institutional financial gain.
  24. Attempting to engage in conduct that subverts or undermines the integrity of the examination or the examination process, including a violation of security and copyright provisions related to the national licensure examination; utilizing recalled or memorized examination questions from or with any person; communicating or attempting to communicate with other examinees during the examination; or copying or sharing examination questions or portions of questions.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 9, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-14. Lawful practice.

  1. A physical therapist or physical therapist assistant licensed under this chapter is fully authorized to practice physical therapy. The board shall require each licensee to provide the board with evidence of competence regarding the various elements of manual therapy the licensee practices so the board may determine satisfactory competency levels and requirements as provided under section 43-26.1-03.
  2. A physical therapist or physical therapist assistant shall adhere to the standards of ethics of the physical therapy profession as established by rule.
  3. A physical therapist may purchase, store, and administer topical medications, including aerosol medications as part of the practice of physical therapy but may not dispense or sell any of the medications to patients. A physical therapist shall comply with any regulation adopted by the United States pharmacopoeia specifying protocols for storage of medications.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 10, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-15. Terms and titles.

  1. A physical therapist shall use the letters “PT” in connection with the physical therapist’s name or place of business to denote licensure under this chapter.
  2. Except as otherwise provided by law, a person or business entity, and its employees, agents, or representatives, shall not use in connection with that person’s or entity’s name or activity the words “physical therapy”, “physical therapist”, “physiotherapist”, “registered physical therapist”, the letters “PT”, “MPT”, “DPT”, “LPT”, “RPT”, or any other words, abbreviation, or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied, unless such services are provided by or under the direction of a physical therapist licensed pursuant to this chapter. A person or business entity shall not advertise or otherwise promote another person as being a “physical therapist” or “physiotherapist” unless the individual so advertised or promoted is licensed as a physical therapist under this chapter. A person or business entity that offers, provides, or bills any other person for services shall not characterize those services as “physical therapy” unless the individual performing that service is licensed as a physical therapist under this chapter.
  3. A physical therapist assistant shall use the letters “PTA” in connection with that person’s name to denote licensure under this chapter.
  4. A person shall not use the title “physical therapist assistant”, the letters “PTA”, or any other words, abbreviations, or insignia in connection with that person’s name to indicate or imply, directly or indirectly, that the person is a physical therapist assistant unless that person is licensed under this chapter.
  5. A physical therapist who graduated from a doctor of physical therapy program may use the title “doctor of physical therapy”. A physical therapist holding a doctor of physical therapy or other doctoral degree may not use the title “doctor” without clearly informing the public of the physical therapist’s licensure as a physical therapist.

Source:

S.L. 2005, ch. 365, § 2; 2019, ch. 363, § 11, effective July 1, 2019.

Note.

Section 12 of chapter 363, S.L. 2019 provides, “ APPLICATION. Notwithstanding section 2 of this Act, any member of the North Dakota board of physical therapy serving a term on the board when this Act becomes effective whose term does not expire on June 30, 2019, may serve the remainder of that member's term. For a board position expiring on June 30, 2019, and for the new positions to the board created by section 2 of this Act, the governor shall appoint individuals to fill those positions in accordance with section 2 of this Act, and the terms of those appointees may be staggered. To accomplish the staggering, the initial term of those appointees may be less than five years.”

43-26.1-16. Representations and billings without licensure prohibited — Enforcement — Injunctions.

No person or business entities of any type shall practice physical therapy or hold themselves out, represent themselves, or send out billings as providing physical therapy services, without personal licensure or the use of licensed employees as provided in this chapter. It shall be unlawful to employ an unlicensed physical therapist or physical therapist assistant to provide physical therapy services. The board’s executive officer, under the board’s direction, shall aid state’s attorneys in the enforcement of this chapter and the prosecution of any violations thereof. In addition to the criminal penalties provided by this chapter, the civil remedy of injunction shall be available to restrain and enjoin violations of this chapter without proof of actual damages sustained by any person.

Source:

S.L. 2005, ch. 365, § 2.

43-26.1-17. Penalty.

Any person violating any of the provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 2005, ch. 365, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-26.2 Physical Therapy Licensure Compact

43-26.2-01. Physical therapy licensure compact.

History. S.L. 2017, ch. 291, § 1, effective August 1, 2017.

ARTICLE I — PURPOSE

The purpose of this compact is to facilitate interstate practice of physical therapy with the goal of improving public access to physical therapy services. The practice of physical therapy occurs in the state where the patient or client is located at the time of the patient or client encounter. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.

This compact is designed to achieve the following objectives:

  1. Increase public access to physical therapy services by providing for the mutual recognition of other member state licenses;
  2. Enhance the states’ ability to protect the public’s health and safety;
  3. Encourage the cooperation of member states in regulating multistate physical therapy practice;
  4. Support spouses of relocating military members;
  5. Enhance the exchange of licensure, investigative, and disciplinary information between member states; and
  6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state’s practice standards.
  7. “Encumbered license” means a license that a physical therapy licensing board has limited in any way.
  8. “Executive board” means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the commission.
  9. “Home state” means the member state that is the licensee’s primary state of residence.
  10. “Investigative information” means information, records, and documents received or generated by a physical therapy licensing board pursuant to an investigation.
  11. “Jurisprudence requirement” means the assessment of an individual’s knowledge of the laws and rules governing the practice of physical therapy in a state.
  12. “Licensee” means an individual who currently holds an authorization from the state to practice as a physical therapist or to work as a physical therapist assistant.
  13. “Member state” means a state that has enacted the compact.
  14. “Party state” means any member state in which a licensee holds a current license or compact privilege or is applying for a license or compact privilege.
  15. “Physical therapist” means an individual who is licensed by a state to practice physical therapy.
  16. “Physical therapist assistant” means an individual who is licensed or certified by a state and who assists the physical therapist in selected components of physical therapy.
  17. “Physical therapy”, “physical therapy practice”, and “the practice of physical therapy” mean the care and services provided by or under the direction and supervision of a licensed physical therapist.
  18. “Physical therapy compact commission” or “commission” means the national administrative body whose membership consists of all states that have enacted the compact.
  19. “Physical therapy licensing board” or “licensing board” means the agency of a state that is responsible for the licensing and regulation of physical therapists and physical therapist assistants.
  20. “Remote state” means a member state other than the home state, where a licensee is exercising or seeking to exercise the compact privilege.
  21. “Rule” means a regulation, principle, or directive promulgated by the commission which has the force of law.
  22. “State” means any state, commonwealth, district, or territory of the United States of America that regulates the practice of physical therapy.
    1. Participate fully in the commission’s data system, including using the commission’s unique identifier as defined in rules;
    2. Have a mechanism in place for receiving and investigating complaints about licensees;
    3. Notify the commission, in compliance with the terms of the compact and rules, of any adverse action or the availability of investigative information regarding a licensee;
    4. Fully implement a criminal background check requirement, within a time frame established by rule, by receiving the results of the federal bureau of investigation record search on criminal background checks and use the results in making licensure decisions in accordance with subsection 2;
    5. Comply with the rules of the commission;
    6. Utilize a recognized national examination as a requirement for licensure pursuant to the rules of the commission; and
    7. Have continuing competence requirements as a condition for license renewal.
    8. Report to the commission adverse action taken by any nonmember state within thirty days from the date the adverse action is taken.
    9. Hire employees; elect or appoint officers; fix compensation; define duties; grant such individuals appropriate authority to carry out the purposes of the compact; and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;
    10. Accept any and all appropriate donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same, provided that at all times the commission shall avoid any appearance of impropriety or conflict of interest;
    11. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve, or use, any property, real, personal, or mixed, provided that at all times the commission shall avoid any appearance of impropriety;
    12. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property real, personal, or mixed;
    13. Establish a budget and make expenditures;
    14. Borrow money;
    15. Appoint committees, including standing committees comprised of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws;
    16. Provide and receive information from, and cooperate with, law enforcement agencies;
    17. Establish and elect an executive board; and
    18. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of physical therapy licensure and practice.
      1. Seven voting members who are elected by the commission from the current membership of the commission;
      2. One ex officio, nonvoting member from the recognized national physical therapy professional association; and
      3. One ex officio, nonvoting member from the recognized membership organization of the physical therapy licensing boards.
      4. Maintain financial records on behalf of the commission;
      5. Monitor compact compliance of member states and provide compliance reports to the commission;
      6. Establish additional committees as necessary; and
      7. Other duties as provided in rules or bylaws.
      8. Disclosure of investigative records compiled for law enforcement purposes;
      9. Disclosure of information related to any investigative reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact; or
      10. Matters specifically exempted from disclosure by federal or member state statute.

ARTICLE II — DEFINITIONS

As used in this compact, and except as otherwise provided, the following definitions apply:

1. “Active duty military” means full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. sections 1209 and 1211.

2. “Adverse action” means disciplinary action taken by a physical therapy licensing board based upon misconduct, unacceptable performance, or a combination of both.

3. “Alternative program” means a nondisciplinary monitoring or practice remediation process approved by a physical therapy licensing board. This includes substance abuse issues.

4. “Compact privilege” means the authorization granted by a remote state to allow a licensee from another member state to practice as a physical therapist or work as a physical therapist assistant in the remote state under its laws and rules. The practice of physical therapy occurs in the member state where the patient or client is located at the time of the patient or client encounter.

5. “Continuing competence” means a requirement, as a condition of license renewal, to provide evidence of participation in, or completion of, educational and professional activities relevant to practice or area of work.

6. “Data system” means a repository of information about licensees, including examination, licensure, investigative, compact privilege, and adverse action.

ARTICLE III — STATE PARTICIPATION IN THE COMPACT

1. To participate in the compact, a state must:

2. Upon adoption of this statute, the member state may obtain biometric-based information from each physical therapy licensure applicant and submit this information to the federal bureau of investigation for a criminal background check in accordance with 28 U.S.C. section 534 and 42 U.S.C. section 14616.

3. A member state shall grant the compact privilege to a licensee holding a valid unencumbered license in another member state in accordance with the terms of the compact and rules.

4. Member states may charge a fee for granting a compact privilege.

ARTICLE IV — COMPACT PRIVILEGE

1. To exercise the compact privilege under the terms and provisions of the compact, the licensee shall:

a. Hold a license in the home state;

b. Have no encumbrance on any state license;

c. Be eligible for a compact privilege in any member state in accordance with subsections 4, 7, and 8;

d. Have not had any adverse action against any license or compact privilege within the previous two years;

e. Notify the commission the licensee is seeking the compact privilege within a remote state;

f. Pay any applicable fees, including any state fee, for the compact privilege;

g. Meet any jurisprudence requirements established by the remote state in which the licensee is seeking a compact privilege; and

2. The compact privilege is valid until the expiration date of the home license. The licensee must comply with the requirements of subsection 1 to maintain the compact privilege in the remote state.

3. A licensee providing physical therapy in a remote state under the compact privilege shall function within the laws and regulations of the remote state.

4. A licensee providing physical therapy in a remote state is subject to that state’s regulatory authority. A remote state may, in accordance with due process and that state’s laws, remove a licensee’s compact privilege in the remote state for a specific period of time, impose fines, or take any other necessary actions to protect the health and safety of its citizens. The licensee is not eligible for a compact privilege in any state until the specific time for removal has passed and all fines are paid.

5. If a home state license is encumbered, the licensee loses the compact privilege in any remote state until the following occur:

a. The home state license is no longer encumbered; and

b. Two years have elapsed from the date of the adverse action.

6. Once an encumbered license in the home state is restored to good standing, the licensee shall meet the requirements of subsection 1 to obtain a compact privilege in any remote state.

7. If a licensee’s compact privilege in any remote state is removed, the individual loses the compact privilege in any remote state until the following occur:

a. The specific period of time for which the compact privilege was removed has ended;

b. All fines have been paid; and

c. Two years have elapsed from the date of the adverse action.

8. Once the requirements of subsection 7 have been met, the licensee shall meet the requirements in subsection 1 to obtain a compact privilege in a remote state.

ARTICLE V — ACTIVE DUTY MILITARY PERSONNEL OR THEIR SPOUSES

A licensee who is active duty military or is the spouse of an individual who is active duty military may designate one of the following as the home state:

1. Home of record;

2. Permanent change of station; or

3. State of current residence if it is different from the permanent change of station state or home of record.

ARTICLE VI — ADVERSE ACTIONS

1. A home state has the exclusive power to impose adverse action against a license issued by the home state.

2. A home state may take adverse action based on the investigative information of a remote state, if the home state follows its own procedures for imposing adverse action.

3. This compact does not override a member state’s decision that participation in an alternative program may be used in lieu of adverse action and that such participation must remain nonpublic if required by the member state’s laws. Member states shall require licensees who enter any alternative programs in lieu of discipline to agree not to practice in any other member state during the term of the alternative program without prior authorization from such other member state.

4. Any member state may investigate actual or alleged violations of the statutes and rules authorizing the practice of physical therapy in any other member state in which a physical therapist or physical therapist assistant holds a license or compact privilege.

5. A remote state may:

a. Take adverse actions as set forth in subsection 4 of article IV against a licensee’s compact privilege in the state;

b. Issue subpoenas for both hearings and investigations which require the attendance and testimony of witnesses, and the production of evidence. Subpoenas issued by a physical therapy licensing board in a party state for the attendance and testimony of witnesses, or the production of evidence from another party state, must be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state where the witnesses or evidence are located; and

c. If otherwise permitted by state law, recover from the licensee the costs of investigations and disposition of cases resulting from any adverse action taken against that licensee.

6. Joint investigations.

a. In addition to the authority granted to a member state by its respective physical therapy practice act or other applicable state law, a member state may participate with other member states in joint investigations of licensees.

b. Member states shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

ARTICLE VII — ESTABLISHMENT OF THE PHYSICAL THERAPY COMPACT COMMISSION

1. The compact member states hereby create and establish a joint public agency known as the physical therapy compact commission:

a. The commission is an instrumentality of the compact states.

b. Venue is proper and judicial proceedings by or against the commission must be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

c. This compact may not be construed to be a waiver of sovereign immunity.

2. Membership, voting, and meetings.

a. Each member state is limited to one delegate selected by that member state’s licensing board.

b. The delegate must be a current member of the licensing board, who is a physical therapist, physical therapist assistant, public member, or the board administrator.

c. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

d. The member state board shall fill any vacancy occurring in the commission.

e. Each delegate is entitled to one vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission.

f. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates’ participation in meetings by telephone or other means of communication.

g. The commission shall meet at least once during each calendar year. Additional meetings must be held as set forth in the bylaws.

3. The commission shall have the following powers and duties:

a. Establish the fiscal year of the commission;

b. Establish bylaws;

c. Maintain its financial records in accordance with the bylaws;

d. Meet and take such actions as are consistent with the provisions of this compact and the bylaws;

e. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules have the force and effect of law and are binding in all member states;

f. Bring and prosecute legal proceedings or actions in the name of the commission, provided the standing of any state physical therapy licensing board to sue or be sued under applicable law may not be affected;

g. Purchase and maintain insurance and bonds;

h. Borrow, accept, or contract for services of personnel, including employees of a member state;

4. The executive board may act on behalf of the commission according to the terms of this compact:

a. The executive board must be comprised of nine members:

b. The ex officio members are selected by their respective organizations.

c. The commission may remove any member of the executive board as provided in bylaws.

d. The executive board shall meet at least annually.

e. The executive board shall:

(1) Recommend to the entire commission changes to the rules or bylaws, changes to this compact legislation, fees paid by compact member states such as annual dues, and any commission compact fee charged to licensees for the compact privilege;

(2) Ensure compact administration services are appropriately provided, contractual or otherwise;

(3) Prepare and recommend the budget;

5. Meetings of the commission.

a. All meetings are open to the public, and public notice of meetings must be given in the same manner as required under the rulemaking provisions in article IX.

b. The commission or the executive board or other committees of the commission may convene in a closed, nonpublic meeting if the commission or executive board or other committees of the commission must discuss:

(1) Noncompliance of a member state with its obligations under the compact;

(2) The employment, compensation, discipline, or other matters, practices, or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

(3) Current, threatened, or reasonably anticipated litigation;

(4) Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate;

(5) Accusing any person of a crime or formally censuring any person;

(6) Disclosure of trade secrets or commercial or financial information that is privileged or confidential;

(7) Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;

c. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

d. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

6. Financing of the commission.

a. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

b. The commission may accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.

c. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount must be allocated based upon a formula to be determined by the commission, which shall promulgate a rule binding upon all member states.

d. The commission may not incur obligations of any kind before securing the funds adequate to meet the same, nor may the commission pledge the credit of any of the member states, except by and with the authority of the member state.

e. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission must be audited yearly by a certified or licensed public accountant, and the report of the audit must be included in and become part of the annual report of the commission.

7. Qualified immunity, defense, and indemnification.

a. The members, officers, executive director, employees, and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that nothing in this subdivision may be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

b. The commission shall defend any member, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided this subdivision may not be construed to prohibit that person from retaining that person’s own counsel, and provided further, that the actual or alleged act, error, or omission did not result from that person’s intentional, willful, or wanton misconduct.

c. The commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional, willful, or wanton misconduct of that person.

ARTICLE VIII — DATA SYSTEM

1. The commission shall provide for the development, maintenance, and utilization of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states.

2. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact is applicable as required by the rules of the commission, including:

a. Identifying information;

b. Licensure data;

c. Adverse actions against a license or compact privilege;

d. Nonconfidential information related to alternative program participation;

e. Any denial of application for licensure, and the reason for such denial; and

f. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

3. Investigative information pertaining to a licensee in any member state will only be available to other party states.

4. The commission promptly shall notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state is available to any other member state.

5. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

6. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information must be removed from the data system.

ARTICLE IX — RULEMAKING

1. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted under this article. Rules and amendments become binding as of the date specified in each rule or amendment.

2. If a majority of the legislatures of the member states reject a rule, by enactment of a statute or resolution in the same manner used to adopt the compact within four years of the date of adoption of the rule, then such rule has no further force and effect in any member state.

3. Rules or amendments to the rules must be adopted at a regular or special meeting of the commission.

4. Before promulgation and adoption of a final rule or rules by the commission, and at least thirty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

a. On the website of the commission or other publicly accessible platform; and

b. On the website of each member state physical therapy licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

5. The notice of proposed rulemaking must include:

a. The proposed time, date, and location of the meeting in which the rule will be considered and voted upon;

b. The text of the proposed rule or amendment and the reason for the proposed rule;

c. A request for comments on the proposed rule from any interested persons; and

d. The manner in which interested persons may submit notice to the commission of the interested persons’ intentions to attend the public hearing and any written comments.

6. Before adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which must be made available to the public.

7. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:

a. At least twenty-five persons;

b. A state or federal governmental subdivision or agency; or

c. An association having at least twenty-five members.

8. If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time, and date of the scheduled public hearing. If the hearing is held via electronic means, the commission shall publish the mechanism for access to the electronic hearing.

a. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing not less than five business days before the scheduled date of the hearing.

b. Hearings must be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

c. All hearings must be recorded. A copy of the recording must be made available on request.

d. This section may not be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

9. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

10. If written notice of intent to attend the public hearing by interested parties is not received, the commission may proceed with promulgation of the proposed rule without a public hearing.

11. By majority vote of all members, the commission shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

12. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

a. Meet an imminent threat to public health, safety, or welfare;

b. Prevent a loss of commission or member state funds;

c. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or

d. Protect public health and safety.

13. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds the revision results in a material change to a rule. A challenge must be made in writing, and delivered to the chair of the commission before the end of the notice period. If a challenge is not made, the revision takes effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE X — OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT

1. Oversight.

a. The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The provisions of this compact and the rules promulgated under this compact have standing as statutory law.

b. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the commission.

c. The commission is entitled to receive service of process in any such proceeding, and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.

2. Default, technical assistance, and termination.

a. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

(1) Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default, and any other action to be taken by the commission; and

(2) Provide remedial training and specific technical assistance regarding the default.

b. If a state in default fails to cure the default, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the member states, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

c. Termination of membership in the compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor, the majority and minority leaders of the defaulting state’s legislature, and each of the member states.

d. A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

e. The commission may not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed upon in writing between the commission and the defaulting state.

f. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing member must be awarded all costs of such litigation, including reasonable attorney’s fees.

3. Dispute resolution.

a. Upon request by a member state, the commission shall attempt to resolve disputes related to the compact which arise among member states and between member and nonmember states.

b. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

4. Enforcement.

a. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

b. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing member must be awarded all costs of such litigation, including reasonable attorney’s fees.

c. The remedies herein are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE XI — DATE OF IMPLEMENTATION OF THE INTERSTATE COMMISSION FOR PHYSICAL THERAPY PRACTICE AND ASSOCIATED RULES, WITHDRAWAL, AND AMENDMENT

1. The compact comes into effect on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, are limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to the implementation and administration of the compact.

2. Any state that joins the compact after the commission’s initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission has the full force and effect of law on the day the compact becomes law in that state.

3. Any member state may withdraw from this compact by enacting a statute repealing the same.

a. A member state’s withdrawal does not take effect until six months after enactment of the repealing statute.

b. Withdrawal does not affect the continuing requirement of the withdrawing state’s physical therapy licensing board to comply with the investigative and adverse action reporting requirements of this compact before the effective date of withdrawal.

4. This compact may not be construed to invalidate or prevent any physical therapy licensure agreement or other cooperative arrangement between a member state and a nonmember state which does not conflict with the provisions of this compact.

5. This compact may be amended by the member states. An amendment to this compact may not become effective and binding upon any member state until it is enacted into the laws of all member states.

ARTICLE XII — CONSTRUCTION AND SEVERABILITY

This compact must be liberally construed so as to effectuate the purposes of the compact. The provisions of this compact are severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability of the remainder of this compact to any government, agency, person, or circumstance is not affected thereby. If this compact is held contrary to the constitution of any party state, the compact remains in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

CHAPTER 43-27 Watchmakers [Repealed]

[Repealed by S.L. 1985, ch. 486, § 1]

CHAPTER 43-28 Dentists

43-28-01. Definitions.

As used in this chapter and chapter 43-20, unless the context otherwise requires:

  1. “Accredited dental school” means a dental school, college, or university accredited by the commission on dental accreditation of the American dental association or its successor.
  2. “Advertising” means to invite the attention of or give notice to the public, by any means, medium, or manner whatsoever of any fact, information, or data pertaining to or being conducive of the practice of dentistry in this state.
  3. “Board” means the state board of dental examiners.
  4. “Certificate of registration” means a written statement of the board declaring that a licensed dentist has paid the biennial registration fee required by this chapter.
  5. “Dentist” means an individual who has a license to practice in this state and who holds a valid biennial certificate of registration.
  6. “License” means the right, authority, or permission granted by the board to practice dentistry in this state.
  7. “Practice of dentistry” means examination, diagnosis, treatment, repair, administration of local or general anesthetics, prescriptions, or surgery of or for any disease, disorder, deficiency, deformity, discoloration, condition, lesion, injury, or pain of the human oral cavity, teeth, gingivae, and soft tissues, and the diagnosis, surgical, and adjunctive treatment of the diseases, injuries, and defects of the upper and lower human jaw and associated structures.
  8. “Telehealth” has the same meaning as in section 26.1-36-09.15.

Source:

S.L. 1959, ch. 319, § 1; 1971, ch. 443, § 1; 1993, ch. 54, § 106; 1995, ch. 409, §§ 5, 6; 2005, ch. 361, § 7; 2007, ch. 374, § 5; 2009, ch. 369, § 14; 2021, ch. 318, § 1, effective August 1, 2021.

Cross-References.

General applicability of chapter to dental hygienists, see N.D.C.C. § 43-20-11.

DECISIONS UNDER PRIOR LAW

Applicability to Dentist.

The rules governing the duties of physicians and surgeons, and their liability in performing professional services, were applicable to dentists. Dolan v. O'Rourke, 56 N.D. 416, 217 N.W. 666, 1928 N.D. LEXIS 227 (N.D. 1928).

43-28-02. Exceptions. [Effective through August 31, 2022]

The provisions of this chapter do not apply:

  1. To the filling of written prescriptions of a licensed and registered dentist by any person for the construction, reproduction, or repair of prosthetic dentures, bridges, plates, or appliances, to be used or worn as substitutes for natural teeth, provided, that such person or legal entity may not solicit or advertise, directly or indirectly, by mail, card, newspaper, pamphlet, radio, television, or otherwise to the general public to construct, reproduce, repair prosthetic dentures, bridges, plates, or other appliances to be used or worn as substitutes for natural teeth.
  2. To a student enrolled in and regularly attending any dental college, dental hygiene, or dental assisting program recognized as such by the board, if the student’s acts are done in the dental college, dental hygiene, or dental assisting program and under the direct supervision of the student’s instructor; or to a student who is in training in any dental program recognized as such by the board and who is continuing the student’s training and performing the duties of an extern under the supervision of a dentist who has received approval to supervise an externship by the appropriate accrediting committee, including the board.
  3. To a legally qualified and licensed physician, surgeon, or other practitioner authorized by law, who in emergency cases performs any act within the scope of the practice of dentistry.
  4. To a duly licensed and registered dentist of another state temporarily operating in this state as a clinician, lecturer, or attendant of an educational program under the auspices of a dental college, a reputable dental society, dental hygienist society, or dental assistant society.
  5. To the practice of dentistry in the discharge of their official duties by graduate dentists or dental surgeons in the United States army, navy, air force, public health service, coast guard, veterans’ bureau, or director of the dental division of the state department of health.
  6. To a registered nurse, licensed practical nurse, registered dental hygienist, or registered dental assistant who is applying topical fluoride varnish to an individual and is acting under the direct or general supervision of a physician or licensed dentist if the registered nurse, licensed practical nurse, registered dental hygienist, or registered dental assistant has successfully completed a training program approved by the board.
  7. To an advanced practice registered nurse licensed under chapter 43-12.1 who is applying topical fluoride varnish to an individual and is acting within the scope of practice of the advanced practice registered nurse and has successfully completed a training program approved by the board.
  8. To registered dental hygienists, registered dental assistants, qualified dental assistants, and dental assistants practicing within the scope of practice and under supervision as required by chapter 43-20 and by rule.

Source:

S.L. 1959, ch. 319, § 2; 1977, ch. 409, § 1; 1981, ch. 450, § 1; 1991, ch. 465, § 6; 1995, ch. 243, § 2; 2005, ch. 361, § 8; 2007, ch. 374, § 6; 2007, ch. 368, § 2; 2009, ch. 369, § 15.

Cross-References.

Dental hygienists, licensing, see N.D.C.C. ch. 43-20.

43-28-02. Exceptions. [Effective September 1, 2022]

The provisions of this chapter do not apply:

  1. To the filling of written prescriptions of a licensed and registered dentist by any person for the construction, reproduction, or repair of prosthetic dentures, bridges, plates, or appliances, to be used or worn as substitutes for natural teeth, provided, that such person or legal entity may not solicit or advertise, directly or indirectly, by mail, card, newspaper, pamphlet, radio, television, or otherwise to the general public to construct, reproduce, repair prosthetic dentures, bridges, plates, or other appliances to be used or worn as substitutes for natural teeth.
  2. To a student enrolled in and regularly attending any dental college, dental hygiene, or dental assisting program recognized as such by the board, if the student’s acts are done in the dental college, dental hygiene, or dental assisting program and under the direct supervision of the student’s instructor; or to a student who is in training in any dental program recognized as such by the board and who is continuing the student’s training and performing the duties of an extern under the supervision of a dentist who has received approval to supervise an externship by the appropriate accrediting committee, including the board.
  3. To a legally qualified and licensed physician, surgeon, or other practitioner authorized by law, who in emergency cases performs any act within the scope of the practice of dentistry.
  4. To a duly licensed and registered dentist of another state temporarily operating in this state as a clinician, lecturer, or attendant of an educational program under the auspices of a dental college, a reputable dental society, dental hygienist society, or dental assistant society.
  5. To the practice of dentistry in the discharge of their official duties by graduate dentists or dental surgeons in the United States army, navy, air force, public health service, coast guard, veterans’ bureau, or director of the dental division of the department of health and human services.
  6. To a registered nurse, licensed practical nurse, registered dental hygienist, or registered dental assistant who is applying topical fluoride varnish to an individual and is acting under the direct or general supervision of a physician or licensed dentist if the registered nurse, licensed practical nurse, registered dental hygienist, or registered dental assistant has successfully completed a training program approved by the board.
  7. To an advanced practice registered nurse licensed under chapter 43-12.1 who is applying topical fluoride varnish to an individual and is acting within the scope of practice of the advanced practice registered nurse and has successfully completed a training program approved by the board.
  8. To registered dental hygienists, registered dental assistants, qualified dental assistants, and dental assistants practicing within the scope of practice and under supervision as required by chapter 43-20 and by rule.

Source:

S.L. 1959, ch. 319, § 2; 1977, ch. 409, § 1; 1981, ch. 450, § 1; 1991, ch. 465, § 6; 1995, ch. 243, § 2; 2005, ch. 361, § 8; 2007, ch. 374, § 6; 2007, ch. 368, § 2; 2009, ch. 369, § 15; 2021, ch. 352, § 362, effective September 1, 2022.

43-28-03. State board of dental examiners — Members — Appointment — Terms of office — Oath — Vacancies.

The state board of dental examiners consists of nine members appointed by the governor. The membership of the board must include six dentist members, at least one of whom is a board-eligible or board-certified oral and maxillofacial surgeon; one dental hygienist member; one dental assistant member; and one independent consumer member. Appointment to the board is for a term of five years, with terms of office arranged so no more than two terms expire on March sixteenth of each year. Each member of the board shall hold office until a successor is appointed and qualified. An individual appointed to the board qualifies by taking the oath required of civil officers. A member may not serve more than ten years or two 5-year terms of office. If a member of the board is absent from two consecutive regular meetings, the board may declare a vacancy to exist. All vacancies on the board must be filled by the governor by appointment.

Source:

S.L. 1959, ch. 319, § 3; 1977, ch. 410, § 1; 1981, ch. 450, § 2; 1991, ch. 465, § 7; 2021, ch. 318, § 2, effective August 1, 2021.

Note.

Section 6 of chapter 318, S.L. 2021, provides: “ APPLICATION. The governor shall appoint the members of the board for staggered terms so no more than two members' terms expire each year. Notwithstanding section 43-28-03, a member appointed under this section may not serve more than two full five-year terms but may serve more than ten years.”

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

DECISIONS UNDER PRIOR LAW

Removal from State.

After his removal from the state, a former incumbent of the state board of dental examiners could not be a de facto officer. Chandler v. Starling, 19 N.D. 144, 121 N.W. 198 (N.D. 1909).

43-28-04. Qualifications and appointment of members of the board — Limited vote.

  1. An individual may not be appointed as a dentist member of the board unless that individual:
    1. Is a dentist licensed and registered under this chapter; and
    2. Is actively engaged in the practice of dentistry and has been so engaged in this state for at least five years immediately preceding the appointment.
  2. An individual may not be appointed as the dental hygienist member of the board unless that individual:
    1. Is a licensed and registered dental hygienist in accordance with chapter 43-20; and
    2. Is actively engaged in the practice of dental hygiene and has been so engaged in this state for at least five years immediately preceding the dental hygienist’s appointment.
  3. An individual may not be appointed as the dental assistant member of the board unless that individual:
    1. Is a registered dental assistant in accordance with chapter 43-20; and
    2. Is actively practicing as a registered dental assistant and has been so practicing in this state for at least five years immediately preceding the dental assistant’s appointment.
  4. An individual may not be appointed as the independent consumer member of the board unless that individual:
    1. Has been a resident of North Dakota for five years immediately preceding appointment;
    2. Has no personal, family, or financial relationship with the dental profession; and
    3. Is not a dentist, a dental hygienist, a dental assistant, a physician, a nurse, or the spouse of an individual engaged in any of those occupations.
  5. The dental hygienist, dental assistant, and independent consumer member of the board shall exercise full voting privileges in all areas except that the dental hygienist may not participate in the clinical examination of dentists for licensure and the dental assistant and independent consumer member may not participate in the clinical examination of dentists or hygienists for licensure.

Source:

S.L. 1959, ch. 319, § 4; 1977, ch. 410, § 2; 1981, ch. 450, § 3; 1981, ch. 435, § 13; 1991, ch. 465, § 8; 1995, ch. 409, § 7; 2007, ch. 374, § 7; 2021, ch. 318, § 3, effective August 1, 2021.

43-28-05. Meeting of board — Officers — Bond — Compensation of members — Quorum.

The board shall hold a regular annual meeting at a place designated by the board and special meetings when necessary. At the regular meeting of the board, the members shall elect from their number a president, a member who has at least two years remaining on that member’s term, president-elect, a member who has at least three years remaining on that member’s term, and a secretary-treasurer. The executive director shall furnish a bond in the amount fixed by the board. Each member of the board shall receive as compensation for each day actually engaged in the duties of the office per diem at a rate established by the board and reimbursement for expenses as provided in section 54-06-09 while attending meetings of the board. The executive director may be paid an annual salary in an amount determined by the board. Four members of the board constitute a quorum but a smaller number may adjourn from time to time.

Source:

S.L. 1959, ch. 319, § 5; 1971, ch. 443, § 2; 1979, ch. 468, § 2; 1981, ch. 445, § 4; 1981, ch. 450, § 4; 1991, ch. 465, § 9; 1995, ch. 409, § 8; 2001, ch. 380, § 7; 2007, ch. 374, § 8.

Cross-References.

Dental hygiene and practice thereof defined, see N.D.C.C. § 43-20-03.

43-28-06. Powers of board.

The board may:

  1. Adopt and enforce reasonable rules to govern its proceedings and to carry out this chapter.
  2. Examine applicants for licenses or registration to practice dentistry, dental hygiene, or dental assisting in this state, either by direct examination or by accepting the results of national or regional dental testing services in which the board participates or which the board recognizes.
  3. Issue, suspend, revoke, limit, cancel, restrict, and reinstate licenses to practice dentistry or dental hygiene and the biennial certificates of registration upon any grounds authorized by this chapter or rules adopted by the board.
  4. Issue subpoenas to require the attendance of witnesses and the production of documentary evidence and may administer oaths. Any member or executive officer of the board may administer oaths to witnesses, or issue subpoenas, but all subpoenas so issued must be attested by the secretary who shall affix the seal of the board thereto.
  5. Employ and compensate an executive director, attorneys, investigative staff, and clerical assistants and may perform any other duties imposed upon the board by this chapter.
  6. Establish minimum continuing professional education requirements for dentists, dental hygienists, and dental assistants.
  7. Enter an agreement with the same professional organization with which the North Dakota board of medicine has entered an agreement under subsection 6 of section 43-17-07.1.

Source:

S.L. 1959, ch. 319, § 6; 1985, ch. 487, § 1; 1991, ch. 465, § 10; 1995, ch. 409, § 9; 2005, ch. 361, § 9; 2009, ch. 369, § 16; 2013, ch. 328, §§ 3, 4; 2015, ch. 297, § 34, effective August 1, 2015.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-28-07. Expenses of board — How paid — Funds held by secretary-treasurer. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

43-28-08. Records of board — Use as evidence.

The board shall keep full and complete minutes of its proceedings and of its receipts and disbursements and a full and accurate list of all persons licensed and registered by it. The records of the board, together with the list of all licensed and registered dentists, are public records and must be open to public inspection at all reasonable times. Such records, or a transcript of the same or any part thereof, under the seal of the board, duly certified by its secretary-treasurer, are competent evidence of the facts therein stated. A certificate of the secretary-treasurer under the seal of the board stating that any person is or is not a duly licensed and registered dentist is prima facie evidence of such fact.

Source:

S.L. 1959, ch. 319, § 8.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-28-09. Biennial report.

The board may submit a report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1959, ch. 319, § 9; 1963, ch. 346, § 46; 1973, ch. 403, § 35; 1975, ch. 466, § 37; 1995, ch. 350, § 36.

43-28-10. License and certificate required — Scope of practice.

A person may not practice dentistry in this state unless that person is a dentist.

Source:

S.L. 1959, ch. 319, § 10; 2005, ch. 361, § 10; 2007, ch. 374, § 10; 2009, ch. 369, § 17.

Cross-References.

Dentist not required to be licensed as physician, see N.D.C.C. § 43-17-02.

Collateral References.

Dental hygienists, constitutionality, construction, and application of statute regulating, 11 A.L.R.2d 724.

Constitutionality and construction of statutes or regulations prohibiting one who has no license to practice dentistry from owning, maintaining, or operating an office therefor, 20 A.L.R.2d 808.

Regulation of prosthetic dentistry, 45 A.L.R.2d 1243.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Continuing or separate offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts without license as, 99 A.L.R.2d 654.

Partnership: validity and construction of contractual restrictions on right of medical practitioner to practice, incident to partnership agreement, 62 A.L.R.3d 970.

43-28-10.1. Requirements for licensure.

The board may grant a license to practice dentistry to an applicant who has met all of the following requirements:

  1. The applicant has a doctorate of dental surgery or doctorate of dental medicine degree from an accredited dental school.
  2. The applicant has passed the examination administered by the joint commission on national dental examinations or the national dental examining board of Canada.
  3. The applicant has passed a clinical competency examination administered by a regional dental testing service approved by the board by rule.
  4. The applicant has passed, within one year of making application, a written examination on the laws and rules governing the practice of dentistry in this state.
  5. Grounds for denial of the application under section 43-28-18 do not exist.
  6. The applicant has met any requirement for licensure established by the board by rule.

Source:

S.L. 2009, ch. 369, § 19; 2013, ch. 328, § 5.

43-28-11. Application — Fees.

An individual seeking to practice dentistry in this state shall apply to the executive director of the board on forms prescribed by the board. The application must be verified under oath to the effect that all of the statements contained in the application are true of the applicant’s own knowledge, and must be received by the executive director of the board at least thirty days before the board meeting at which it is considered. The applicant shall enclose with the application a recent autographed picture of the applicant and an application fee as determined by the board by rule.

Source:

S.L. 1959, ch. 319, § 11; 1971, ch. 443, § 4; 1981, ch. 445, § 5; 1981, ch. 435, § 14; 1985, ch. 487, § 2; 1991, ch. 465, § 11; 1995, ch. 409, § 10; 2007, ch. 374, § 11; 2009, ch. 369, § 18.

43-28-11.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a dentist, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 47.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-28-11.2. Fitness — Criminal history record check — Costs.

The board may investigate an applicant’s or a dentist’s fitness, qualification, and previous professional record and performance. The board may seek information sought under this section from recognized data sources, including the national practitioners data bank, data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies. An applicant or a dentist for whom the board is performing an investigation under this section shall cooperate with the board if necessary to access the information sought by the board. The board or the board’s investigative disciplinary panels may require an applicant or a dentist who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with a criminal history record check performed under this section are the responsibility of the dentist or applicant.

Source:

S.L. 2007, ch. 374, § 9.

43-28-11.3. Standard of care and professional ethics — Telehealth.

A dentist is held to the same standard of care and ethical standards, whether practicing traditional in-person dentistry or telehealth. The following apply in the context of telehealth:

  1. Professional ethical standards require a dentist to practice only in areas in which the dentist has demonstrated competence, based on the dentist’s training, ability, and experience.
  2. A dentist may not practice telehealth unless a bona fide dentist-patient relationship is established in person or through telehealth. A dentist practicing telehealth shall verify the identity of the patient seeking care and shall disclose to the patient the dentist’s identity, physical location, contact information, and licensure status.
  3. Before a dentist initially diagnoses or treats a patient for a specific illness, disease, or condition, the dentist shall perform an examination or evaluation. A dentist may perform an examination or evaluation entirely through telehealth if the examination or evaluation may be performed in accordance with the standard of care required for an in-person dental examination or evaluation. A dentist may not use telehealth to perform an initial examination or evaluation in circumstances in which the standard of care necessitates an in-person dental examination.
    1. An appropriate telehealth examination or evaluation may include an examination utilizing secure videoconferencing in conjunction with store-and-forward technology or appropriate diagnostic testing that would be required during an in-person examination or evaluation or an examination conducted with an appropriately licensed intervening dental health care provider, practicing within the scope of the dental health care provider’s profession, providing necessary physical findings to the dentist during a live, two-way telehealth encounter. An examination or evaluation consisting only of a static online questionnaire or an audio conversation does not meet the standard of care.
    2. The use of telehealth does not expand the scope of practice for a dental health care provider, and may not be used to circumvent the licensure requirements established for dental health care providers in this state.
    3. A dentist who practices telehealth in this state must have adequate knowledge of the availability and location of local dentists and dental health care providers to provide followup care to a patient following a dental telehealth encounter, including emergent and acute care facilities, in order to enable a patient to receive followup care. Once a dentist conducts an appropriate examination or evaluation, whether in-person or by telehealth, and establishes a patient-dentist relationship, subsequent followup care may be provided as deemed appropriate by the treating dentist, or by another dentist licensed by the board designated by the treating dentist to act temporarily in the treating dentist’s absence.
  4. A dentist practicing telehealth is subject to all North Dakota laws governing the adequacy of dental records and the provision of dental records to the patient and other dental health care providers treating the patient.
  5. A dentist practicing telehealth must have procedures for providing in-person services or for the referral of a patient requiring dental services that cannot be provided by telehealth to another dentist who practices in the area of the state and the patient can readily access.

Source:

S.L. 2021, ch. 318, § 4, effective August 1, 2021.

43-28-12. Examination — Subjects covered. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-12.1. Regional or other states’ examination. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-12.2. Continuing educational requirement for dentists — Audit. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-13. When re-examination required.

Any dentist who does not undertake the actual practice of dentistry within five years from the date of the dentist’s license and registration, shall, before engaging in the practice of dentistry in this state, notify the board of the intention in writing. The board, after a full investigation, may re-examine the dentist as to the dentist’s qualifications to practice dentistry in this state, if the board deems such re-examination necessary. The failure of the dentist to give the written notice to the board before engaging in the practice of dentistry in this state is grounds for disciplinary action.

Source:

S.L. 1959, ch. 319, § 13; 1971, ch. 443, § 8; 2009, ch. 369, § 21.

43-28-14. Reexamination — Fee — Additional education. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-15. Licensure by credential review.

The board may issue a license and certificate of registration to practice dentistry in this state to an applicant who meets all of the following requirements:

  1. The applicant, for at least five years immediately preceding application, has been licensed in good standing and has been actively practicing dentistry in another jurisdiction where the requirements are at least substantially equivalent to those of this state.
  2. Grounds for denial of the application under section 43-28-18 do not exist.
  3. The applicant pays to the board the fee determined by the board by rule.
  4. The applicant delivers to the board a certificate from the examining or licensing board of every jurisdiction in which the individual is practicing or is licensed to practice, certifying that the individual is a licensed and registered dentist in good standing in that jurisdiction.
  5. The applicant passes a written examination on the laws and rules governing the practice of dentistry in this state administered by the board at a meeting.
  6. The applicant meets any requirement for licensure established by the board by rule.

Source:

S.L. 1959, ch. 319, § 15; 1971, ch. 443, § 9; 1981, ch. 445, § 8; 1991, ch. 465, § 16; 1993, ch. 431, § 6; 1995, ch. 409, § 12; 2007, ch. 374, § 12; 2009, ch. 369, § 22.

43-28-16. Certificate — Displayed in place of business.

The holder of a license and certificate of registration shall display the license and certificate conspicuously in the holder’s place of business.

Source:

S.L. 1959, ch. 319, § 16; 1971, ch. 443, § 10; 1981, ch. 445, § 9; 1985, ch. 487, § 6; 1991, ch. 465, § 17; 2001, ch. 380, § 9; 2009, ch. 369, § 23.

43-28-16.1. Death certificate issuance by dentist.

Any dentist licensed and registered may issue a death certificate in an emergency, when the cause of death is known to the dentist.

Source:

S.L. 1959, ch. 319, § 10.

43-28-16.2. License renewals.

  1. Licenses expire on December thirty-first of every odd-numbered year.
  2. Licenses may be renewed by December thirty-first of the odd-numbered year by submitting a renewal application, a renewal fee established by the board by rule, and proof of completion of the continuing education requirements established by the board by rule, provided the dentist’s license is not revoked or grounds for denial under section 43-28-18 do not exist.
  3. If the renewal application, renewal fee, and proof of completion of continuing education are not received by December thirty-first of the odd-numbered year, the license expires and the dentist may not practice dentistry.
  4. Within sixty days after December thirty-first of the odd-numbered year, an expired license may be renewed by submitting the renewal application, renewal fee, proof of completion of continuing education, and a late fee established by the board by rule.
  5. If the renewal application, renewal fee, proof of completion of continuing education, and late fee are not received within sixty days after December thirty-first of the odd-numbered year, the license may not be renewed, and the dentist must apply for and meet the requirements for licensure to be granted a license.
  6. The board may extend the renewal deadlines for a dentist providing proof of medical or other hardship rendering the dentist unable to meet the deadline.

Source:

S.L. 2009, ch. 369, § 20.

43-28-17. Inactive status.

Upon payment of a fee determined by the board, a dentist may request to have the dentist’s license placed on inactive status. While on inactive status, the dentist may not engage in the practice of dentistry in the state until the dentist applies for reinstatement, pays a renewal fee, and meets any additional requirements established by rule.

Source:

S.L. 1959, ch. 319, § 17; 1979, ch. 468, § 4; 1981, ch. 445, § 10; 1985, ch. 487, § 7; 1991, ch. 465, § 18; 2001, ch. 380, § 10; 2005, ch. 361, § 12; 2007, ch. 374, § 13; 2009, ch. 369, § 24.

43-28-18. Grounds for denial of or disciplinary action against license and certificate.

The board may deny an application or take disciplinary action against the license and the certificate of registration of any applicant or dentist who has:

  1. Engaged in dishonorable, unprofessional, or immoral conduct.
  2. Been convicted of an offense determined by the board to have a direct bearing upon the individual’s ability to serve the public as a dentist, or the board determines, following conviction for any offense, that the individual is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. Been adjudged mentally ill and not judicially restored by the regularly constituted authorities.
  4. Abused, is dependent on, or addicted to the use of alcohol or drugs.
  5. Employed or permitted an unlicensed individual to practice dentistry in the office under the dentist’s control.
  6. Been grossly negligent in the practice of dentistry.
  7. Engaged in fraud or deceit in obtaining the license or in the practice of dentistry.
  8. Disclosed confidential information.
  9. Shared any professional fee with anyone or paid anyone for sending or referring patients to the dentist. However, this does not prohibit dentists from practicing in a partnership and sharing one another’s professional fees, nor prohibit a dentist from employing any other dentist or dental hygienist.
  10. Used any advertising of any character tending to mislead and deceive the public, including advertising the public could reasonably interpret as indicating the dentist is qualified to practice a dental specialty, if the practice of that dental specialty would be outside the scope of practice for which the dentist is qualified to practice.
  11. Failed to meet minimum standards of professional competence.
  12. Prescribed, administered, or dispensed medications for reasons or conditions outside the scope of dental practice.
  13. Fraudulently, carelessly, negligently, or inappropriately prescribed drugs or medications.
  14. Directed others to perform acts or provide dental services for which they were not licensed or qualified or were prohibited by law or rule from performing or providing.
  15. Submitted fraudulent insurance claims.
  16. Made any false or untrue statements in an application for an examination to obtain a license to practice dentistry.
  17. Made any false representations that the individual is the holder of a license or certificate of registration to practice dentistry.
  18. Made any false claims that the individual is a graduate of a dental college or the holder of any diploma or degree from a dental college.
  19. Failed to comply with commonly accepted national infection control guidelines and standards.
  20. Abandoned the dentist’s practice in violation of rules adopted by the board.
  21. Failed to report to the board as required under section 43-28-18.1.
  22. Failed to practice within the scope of that dentist’s education or advanced training as recognized by the board, the American dental association, or other professional entity recognized by the board.
  23. Failed to release copies of dental or medical records requested by a patient of record or violated section 23-12-14. Dental records may include any document, charting, study models, doctor’s notations, billing information, insurance document or combination of documents that pertains to a patient’s medical history, diagnosis, prognosis, or medical condition, which is generated and maintained in the process of the patient’s dental health care treatment.
  24. Advised or directed patients to dental laboratories or dental laboratory technicians for any dental service or advised or directed patients to deal directly with laboratories or dental laboratory technicians without first having furnished the dental laboratory or dental laboratory technician a written prescription.
  25. Worked or cooperated with dental laboratories that advertise for public patronage by delegating work to such laboratories in return for the referral of laboratory patrons for professional services.
  26. Used the services of a person or entity not licensed to practice dentistry in this state, or constructed, altered, repaired, or duplicated a denture, plate, partial plate, bridge, splint, or orthodontic or prosthetic appliance, except as provided by rule adopted by the board.
  27. Violated the code of ethics adopted by the board by rule.
  28. Violated this chapter or rules adopted by the board.
  29. Had the applicant’s or dentist’s license suspended, revoked, or disciplined in another jurisdiction.

Source:

S.L. 1959, ch. 319, § 18; 1977, ch. 130, § 48; 1981, ch. 445, § 11; 1981, ch. 435, § 15; 1991, ch. 465, § 19; 1993, ch. 431, § 7; 2005, ch. 361, § 13; 2007, ch. 374, § 15; 2009, ch. 369, § 25.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Dental hygienists, permitting activities in violation of licensing chapter as ground for suspension or revocation of dentist’s license, see N.D.C.C. § 43-20-05.

Failure to give notice of return to practice as grounds for discipline, see N.D.C.C. § 43-28-13.

Collateral References.

Regulation of prosthetic dentistry, 45 A.L.R.2d 1243.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Validity and construction of statute or ordinance requiring or prohibiting posting or other publication of price of commodity or services, 89 A.L.R.2d 901.

Alcoholism, narcotics addiction, or misconduct with respect to alcoholic beverages or narcotics, as ground for revocation or suspension of license to practice medicine or dentistry, 93 A.L.R.2d 1398.

False claims, reports or bills for services in personal injury litigation, revocation or suspension of dentist’s license for, 95 A.L.R.2d 873.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Professional incompetency as ground for disciplinary measure against physician or dentist, 28 A.L.R.3d 487.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Partnership: validity and construction of contractual restrictions on right of medical practitioner to practice, incident to partnership agreement, 62 A.L.R.3d 970.

Improper or immoral sexually related conduct toward patient as ground for disciplinary action against physician, dentist, or other licensed healer, 59 A.L.R.4th 1104.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon or dentist, 74 A.L.R.4th 969.

Liability of orthodontist for malpractice, 81 A.L.R.4th 632.

Wrongful or Excessive Prescription of Drugs as Ground for Revocation or Suspension of Physician’s or Dentist’s License to Practice. 19 A.L.R.6th 577.

43-28-18.1. Duty to report.

  1. A dentist shall report to the board in writing within sixty days of the event any illegal, unethical, or errant behavior or conduct of the dentist, including the following events, proceedings, or formal or informal actions:
    1. A dental malpractice judgment or malpractice settlement or a final judgment by a court in favor of any party and against the licensee.
    2. A final disposition regarding the surrender of a license, or adverse action taken against a license by a licensing agency in another state, territory, or country; a governmental agency; a law enforcement agency; or a court for an act or conduct that would constitute grounds for discipline under this chapter.
    3. A mortality or other incident occurring in an outpatient facility of the dentist which results in temporary or permanent physical or mental injury requiring hospitalization of the patient during or as a direct result of a dental procedure or related use of general anesthesia, deep sedation, conscious sedation with a parenteral drug, or enteral sedation.
  2. A dentist shall advise the board in a timely manner if the dentist reasonably believes another dentist has committed an illegal or immoral act or has otherwise failed to make a report as required under subsection 1.

Source:

S.L. 2007, ch. 374, § 14; 2009, ch. 369, § 26.

43-28-18.2. Disciplinary procedure.

  1. A person may file a written and signed complaint with the board alleging a dentist engaged in conduct identified as grounds for disciplinary action under section 43-28-18. The board may also initiate a complaint and investigation on the board’s motion.
  2. The board may direct a complaint committee to investigate a complaint and recommend whether the board should initiate a disciplinary action against the dentist.
  3. The board or complaint committee shall notify the dentist of the complaint, and require a written response from the dentist. The board or complaint committee may examine and copy records, including patient records, examine witnesses, obtain expert opinions, require the dentist to be physically or mentally examined, or both, by qualified professionals selected by the board, and take any other action necessary to investigate the complaint. A request by the board or complaint committee is authorized to disclose patient information and records to the board or complaint committee. Patient information and records disclosed to the board or complaint committee are confidential. The dentist shall cooperate with the board or the complaint committee in the investigation, including responding promptly and completely to a request or requirement.
  4. The complaint, response, and any record received by the board in investigating the complaint are exempt records, as defined in section 44-04-17.1, until the board determines to proceed with a disciplinary action.
  5. The board shall determine if there is a reasonable basis to believe the dentist engaged in conduct identified as grounds for disciplinary action under section 43-28-18. If the board determines there is not a reasonable basis to believe, the board shall notify the complainant and the dentist. If the board determines there is a reasonable basis to believe, the board shall proceed with a disciplinary action in accordance with chapter 28-32.
  6. The board, at any time, may offer or accept a proposal for informal resolution of the complaint or disciplinary action.
  7. The board may impose a fee on the dentist for all or part of the costs of an action resulting in discipline, including administrative costs, investigation costs, attorney’s fees, witness fees, the cost of the office of administrative hearings’ services, and court costs.

Source:

S.L. 2009, ch. 369, § 27.

43-28-18.3. Temporary suspension — Appeal.

  1. When, based on verified evidence, the board determines by a clear and convincing standard that the evidence presented to the board indicates that the continued practice by the dentist would create a significant risk of serious and ongoing harm to the public while a disciplinary proceeding is pending, and that immediate suspension of the dentist’s license is required to reasonably protect the public from that risk of harm, the board may order a temporary suspension ex parte. For purposes of this section, “verified evidence” means testimony taken under oath and based on personal knowledge. The board shall give prompt written notice of the suspension to the dentist, which must include a copy of the order and complaint, the date set for a full hearing, and a specific description of the nature of the evidence, including a list of all known witnesses and a description of any documents relied upon by the board in ordering the temporary suspension which, upon request, must be made available to the dentist.
  2. An ex parte temporary suspension remains in effect until a final order is issued after a full hearing or appeal under this section or until the suspension is otherwise terminated by the board.
  3. The board shall conduct a hearing on the merits of the allegations to determine what disciplinary action, if any, must be taken against the dentist who is the subject of the ex parte suspension. That hearing must be held not later than thirty days from the issuance of the ex parte temporary suspension order. The dentist is entitled to a continuance of the thirty-day period upon request for a period determined by the hearing officer.
  4. The dentist may appeal the ex parte temporary suspension order before the full hearing. For purposes of appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The court shall give priority to the appeal for prompt disposition.
  5. A dental or medical record of a patient, or other document containing personal information relating to a patient, which is obtained by the board is confidential.

Source:

S.L. 2009, ch. 369, § 28.

43-28-19. Revocation of license and certificate — Proceedings, how initiated — Service of notice and hearing. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-20. Plea — Answer — Trial of issues — Witnesses and cost. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-21. Determination — Order — Appeal and review. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-22. Reinstatement of license — Renewal of certificate — When issued — Fees. [Repealed]

Repealed by S.L. 2009, ch. 369, § 31.

43-28-23. Notice to board of change of address.

Within thirty days after a licensed and registered dentist changes the dentist’s place of business, the dentist shall notify the executive director of the board of the new address. The notice must be given by certified mail and return receipt requested. Such licensed and registered dentist may not practice dentistry in the state for more than thirty days after such removal without giving such notice.

Source:

S.L. 1959, ch. 319, § 23; 1985, ch. 487, § 10; 1995, ch. 409, § 14.

43-28-24. Duplicate license and certificate — When issued — Fee.

If a license or certificate of registration to practice dentistry in this state is lost or destroyed, the board shall issue and deliver a duplicate license or certificate for a fee established by rule.

Source:

S.L. 1959, ch. 319, § 24; 1971, ch. 443, § 11; 1981, ch. 445, § 13; 1991, ch. 465, § 21; 2009, ch. 369, § 29.

43-28-25. Unlawful acts — Penalty.

It is a class A misdemeanor:

  1. For any unlicensed person to construct, alter, repair, or duplicate any denture, partial denture, bridge, splint, or orthodontic or prosthetic appliance, except as provided by rule adopted by the board.
  2. For any person:
    1. To falsely claim or pretend to be a graduate from any dental college or the holder of any diploma or degree from such college;
    2. To practice any fraud and deceit either in obtaining a license or a certificate of registration;
    3. To falsely claim or pretend to have or hold a license or certificate of registration from the board to practice dentistry; or
    4. To practice dentistry in this state without a license and certificate of registration.
  3. For any person, except a dentist, to own more than forty-nine percent of an office practice or business at which the practice of dentistry is performed. This provision does not apply to a board-approved medical clinic, hospital, or public health setting with which a dentist is associated; a board-approved nonprofit organization created to serve the dental needs of an underserved population; or the heir or personal representative of a deceased dentist. The board may inspect and approve a medical clinic, hospital, public health setting, or nonprofit organization at which the practice of dentistry is performed. The heir or personal representative may operate an office under the name of the deceased dentist for a period of not longer than two years from the date of the dentist’s death.

The board may institute a civil action for an injunction prohibiting violations of this section without proof that anyone suffered actual damages.

Source:

S.L. 1959, ch. 319, § 25; 1975, ch. 106, § 501; 1995, ch. 414, § 1; 2001, ch. 380, § 11; 2005, ch. 366, § 1; 2009, ch. 369, § 30; 2013, ch. 328, § 6.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Violation of dental hygiene chapter a class B misdemeanor, see N.D.C.C. § 43-20-09.

43-28-25.1. Prohibition — Waivers.

A dentist practicing dentistry may not require a patient to sign a form or statement waiving the patient’s right to file a complaint against the dentist with an appropriate state entity or shielding the dentist from liability for injury resulting from a dental encounter.

Source:

S.L. 2021, ch. 318, § 5, effective August 1, 2021.

43-28-26. Punishment for misdemeanors. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

43-28-27. Fees.

All license fees, registration fees, and other fees authorized to be assessed and collected by the board must be established by rules adopted by the board.

Source:

S.L. 1991, ch. 465, § 22.

CHAPTER 43-28.1 Dentists’ Loan Repayment Program

43-28.1-01. Loan repayment program — Dentists — Defined need — Maximum amount of funds.

Annually, the state health council shall select, from a pool of applicants, dentists who will provide dental services in cities or surrounding areas, or both, in this state which the state health council identifies as having a defined need for dental services. The dentists selected from this pool of applicants shall agree to accept medical assistance patients and assignments or provide dental services in a public health clinic, a practice with a focus on an underserved population, or a nonprofit dental clinic. A selected dentist who agrees to the terms of this program is eligible to receive funds for the repayment of the dentist’s education loans. The funds, which are payable over a five-year period, may not exceed one hundred thousand dollars per applicant. If the state health council accepts any gifts, grants, or donations under this chapter, the council may select additional dentists for participation in the loan repayment program under this chapter.

Source:

S.L. 2001, ch. 385, § 1; 2015, ch. 303, § 1, effective August 1, 2015; 2017, ch. 29, § 11, effective August 1, 2017.

43-28.1-01.1. Loan repayment program for dentists in public health and nonprofit dental clinics. [Repealed]

Source:

S.L. 2009, ch. 372, § 1; repealed by 2015, ch. 303, § 6, effective August 1, 2015.

Note.

Section 7 of chapter 303, S.L. 2015 provides, “ APPLICATION. Sections 43-28.1-01.1, 43-28.1-02, 43-28.1-04, and 43-28.1-10 continue to apply to any dentists who received a grant under those sections before August 1, 2015.”

43-28.1-02. Loan repayment program — Dentists — Powers of state health council. [Repealed]

Source:

S.L. 2001, ch. 385, § 1; repealed by 2015, ch. 303, § 6, effective August 1, 2015.

Note.

Section 7 of chapter 303, S.L. 2015 provides, “ APPLICATION. Sections 43-28.1-01.1, 43-28.1-02, 43-28.1-04, and 43-28.1-10 continue to apply to any dentists who received a grant under those sections before August 1, 2015.”

43-28.1-03. Criteria.

  1. The health council shall establish criteria to be used in selecting qualified dentists and in identifying cities or surrounding areas, or both, that have a defined need for dental services. The criteria must include consideration of:
    1. The number of dentists already providing dental services in the city or surrounding areas, or both;
    2. Access to dental services in the city and the surrounding areas;
    3. How the dentist will provide dental services to individuals on medical assistance or in a public health clinic, a practice with a focus on an underserved population, or a nonprofit dental clinic; and
    4. The dentist’s training in general dentistry or in a dental specialty and the extent to which such services are needed in the identified city or surrounding areas, or both.
  2. As a term of receipt of funds under this chapter, a dentist shall accept medical assistance patients and assignments or provide dental services in a public health clinic, a practice with a focus on an underserved population, or a nonprofit dental clinic. For purposes of a dentist selected for loan payment under this chapter who practices within fifteen miles [24.14 kilometers] of the city limits of one of the three largest cities in the state, to qualify to receive a yearly disbursement under this chapter during that year of obligated service, the dentist must have:
    1. Received dental medical payments of at least twenty thousand dollars in the form of medical assistance reimbursement; or
    2. Practiced at least two full workdays per week at a public health clinic or at a nonprofit dental clinic that uses a sliding fee schedule to bill the nonprofit dental clinic’s patients.
  3. The health council may consult with public and private sector entities in establishing criteria and evaluating needs based on the criteria.

Source:

S.L. 2001, ch. 385, § 1; 2003, ch. 370, § 1; 2007, ch. 375, § 1; 2015, ch. 303, § 2, effective August 1, 2015; 2017, ch. 29, § 12, effective July 1, 2017.

43-28.1-04. Community selection criteria. [Repealed]

Source:

S.L. 2001, ch. 385, § 1; 2003, ch. 370, § 2; repealed by 2015, ch. 303, § 6, effective August 1, 2015.

Note.

Section 7 of chapter 303, S.L. 2015 provides, “ APPLICATION. Sections 43-28.1-01.1, 43-28.1-02, 43-28.1-04, and 43-28.1-10 continue to apply to any dentists who received a grant under those sections before August 1, 2015.”

43-28.1-05. Eligible loans.

The state health council may provide for loan repayment funds to a dentist who has received an education loan. The council may not provide funds for the repayment of any loan that is in default at the time of the application. The amount of repayment must be related to the dentist’s outstanding education loans. A dentist is eligible to receive loan repayment funds in an amount equal to the outstanding balance of the dentist’s education loans with applicable interest, or one hundred thousand dollars, whichever is less. Loan repayment funds may not be used to satisfy other service obligations under similar programs.

Source:

S.L. 2001, ch. 385, § 1; 2015, ch. 303, § 3, effective August 1, 2015.

43-28.1-06. Breach of loan repayment contract. [Repealed]

Source:

S.L. 2001, ch. 385, § 1; repealed by 2017, ch. 292, § 3, effective August 1, 2017.

Note.

Section 4 of chapter 292, S.L. 2017 provides, “ APPLICATION . In the case of a dental student loan repayment contract under chapter 43-28.1 which was entered before the effective date of this Act, the state health council and that dentist may amend the terms of the contract to comply with this Act.”

43-28.1-07. Contract obligation.

The state health council shall enter a contract with a selected dentist. The contract must provide the state health council agrees to make payments of loan repayment funds to the selected dentist, subject to the dentist meeting the requirements and limitations established by the state health council under this chapter.

Source:

S.L. 2001, ch. 385, § 1; 2017, ch. 292, § 1, effective August 1, 2017.

Note.

Section 4 of chapter 292, S.L. 2017 provides, “ APPLICATION. In the case of a dental student loan repayment contract under chapter 43-28.1 which was entered before the effective date of this Act, the state health council and that dentist may amend the terms of the contract to comply with this Act.”

43-28.1-08. Payment — Termination.

  1. The state health council may not provide any loan repayment funds to a dentist under this chapter until the dentist has practiced at least six months on a full-time basis in the city or surrounding areas, or both, the state health council has identified as having a defined need for dental services.
  2. Except as otherwise provided, the state health council shall make payments under this chapter at the conclusion of each of the five twelve-month periods of service during which the dentist met the qualifying terms of the contract. The state health council may make a prorated payment under this chapter if during the twelve-month period the dentist failed to meet the qualifying terms of the contract.
  3. Payments under this chapter terminate upon the earlier of completion of five years as a participant in this loan repayment program or failure of the dentist to meet the qualifying terms under the contract.

Source:

S.L. 2001, ch. 385, § 1; 2015, ch. 303, § 4, effective August 1, 2015; 2017, ch. 292, § 2, effective August 1, 2017.

Note.

Section 4 of chapter 292, S.L. 2017 provides, “ APPLICATION. In the case of a dental student loan repayment contract under chapter 43-28.1 which was entered before the effective date of this Act, the state health council and that dentist may amend the terms of the contract to comply with this Act.”

43-28.1-09. Gifts, grants, and donations — Continuing appropriation.

The state health council may accept any conditional or unconditional gift, grant, or donation for the purpose of providing funds for the repayment of dentists’ educational loans. If any entity desires to provide funds to the council to allow an expansion of the program beyond the dentists contemplated by this chapter, the entity shall commit to fund fully the expansion for a period of five years. The council may contract with any public or private entity and may expend any moneys available to the council to obtain matching funds for the purposes of this chapter. All money received as gifts, grants, or donations under this section is appropriated as a continuing appropriation to the state health council for the purpose of providing funds for the repayment of additional dentists’ educational loans.

Source:

S.L. 2001, ch. 385, § 1; 2015, ch. 303, § 5, effective August 1, 2015.

43-28.1-10. New practices — Grants. [Repealed]

Source:

S.L. 2007, ch. 375, § 2; 2011, ch. 319, § 1; repealed by 2015, ch. 303, § 6, effective August 1, 2015.

Note.

Section 7 of chapter 303, S.L. 2015 provides, “ APPLICATION. Sections 43-28.1-01.1, 43-28.1-02, 43-28.1-04, and 43-28.1-10 continue to apply to any dentists who received a grant under those sections before August 1, 2015.”

CHAPTER 43-29 Veterinarians

43-29-01. Purpose of the chapter. [Repealed]

Repealed by S.L. 2007, ch. 376, § 1.

43-29-01.1. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Accredited college of veterinary medicine” means any veterinary college or division of a university or college which offers the degree of doctor of veterinary medicine or its equivalent and which conforms to the standards required for accreditation by the council on education of the American veterinary medical association.
  2. “Accredited program in veterinary technology” means any postsecondary educational program of two or more academic years that is accredited by the committee on veterinary technician education and activities of the American veterinary medical association.
  3. “Animal” means any animal other than a human being. The term includes any mammal, bird, fish, reptile, or fowl, whether wild or domestic, living or dead.
  4. “Board” means the board of veterinary medical examiners.
  5. “Certificate” means a certificate issued by the educational commission for foreign veterinary graduates or the educational equivalence program of the American association of veterinary state boards, indicating the holder has demonstrated knowledge and skill equivalent to that possessed by a graduate of an accredited college of veterinary medicine.
  6. “Licensed veterinarian” means a person who is licensed by the board to practice veterinary medicine.
  7. “Licensed veterinary technician” means a person who has graduated from an accredited program in veterinary technology or an equivalent program as determined by the board, and who has passed an examination prescribed by the board.
  8. “Practice of veterinary medicine” means to:
    1. Diagnose, treat, correct, change, relieve, or prevent animal disease, deformity, defect, injury, or other physical or mental conditions. The term includes the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthetic, or other therapeutic or diagnostic substance or technique, the use of any manual or mechanical procedure for testing for pregnancy, or for correcting sterility or infertility, or to render advice or recommendation with regard to any of the above.
    2. Represent, directly or indirectly, publicly or privately, an ability and willingness to do an act described in subdivision a.
    3. Use any title, word, abbreviation, or letter in a manner or under circumstances that induce the belief the person using the title, word, abbreviation, or letter is qualified to do any act described in subdivision a.
    4. Apply principles of environmental sanitation, food inspection, environmental pollution control, animal nutrition, zoonotic disease control, and disaster medicine in the promotion and protection of public health.
  9. “Veterinarian-client-patient relationship” means:
    1. A veterinarian has assumed the responsibility for making medical judgments regarding the health of an animal and the need for medical treatment, and the client, who is the owner or other caretaker, has agreed to follow the instructions of the veterinarian.
    2. There is sufficient knowledge of the animal by the veterinarian to initiate at least a general or preliminary diagnosis of the medical condition of the animal.
    3. The practicing veterinarian is readily available for followup in the case of adverse reactions or failure of the regimen of therapy. This relationship exists only when the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal by virtue of an examination of the animal and by medically appropriate and timely visits to the premises where the animal is kept.
  10. “Veterinary medicine” includes veterinary surgery, obstetrics, dentistry, chiropractic, acupuncture, and all other branches or specialties of veterinary medicine.

Source:

S.L. 1995, ch. 415, § 1; 1997, ch. 376, § 1; 1999, ch. 388, § 1; 2001, ch. 386, § 1; 2007, ch. 377, § 1.

43-29-02. State board of veterinary medical examiners — Appointments — Qualifications — Terms — Vacancies.

  1. The state board of veterinary medical examiners consists of five gubernatorially appointed members. In appointing the board members, the governor shall appoint three veterinarians, one veterinarian technician, and one individual representing the public. In appointing the veterinarian members of the board, the governor shall make an effort to appoint:
    1. One veterinarian whose practice has a predominant focus on large animals;
    2. One veterinarian whose practice has a predominant focus on small animals; and
    3. One veterinarian whose practice focuses on both large and small animals.
    1. Each veterinarian on the board must be licensed in this state and must have practiced in this state for at least five years immediately preceding the appointment.
    2. The veterinary technician on the board must be licensed in this state and must have practiced in this state for at least five years immediately preceding the appointment.
    3. The individual representing the public:
      1. Must be a resident of this state;
      2. Must have resided in this state for at least five years immediately preceding the appointment;
      3. May not be a veterinarian, a veterinary technician, or the spouse of a veterinarian or a veterinary technician;
      4. May not ever have been a veterinarian, a veterinary technician, or the spouse of a veterinarian or a veterinary technician; and
      5. May not have any direct financial interest in the provision of veterinary services and may not be engaged in any activity directly related to the veterinary profession.
    1. The term of office for each member is three years. Terms must be staggered by lot so that no more than two terms expire each year. Each term of office begins on July first.
    2. Each member of the board shall hold office until a successor is appointed and qualified.
  2. If at any time during a member’s term, the member ceases to possess any of the qualifications provided in this section or if the member resigns, the member’s office is deemed vacant and the governor shall appoint another qualified individual for the remainder of the term.
  3. The governor may, after due notice and hearing, remove any member of the board of veterinary examiners for cause.

Source:

S.L. 1963, ch. 314, § 2; 1973, ch. 359, § 2; 1981, ch. 435, § 16; 2013, ch. 329, § 1.

Cross-References.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

Collateral References.

Validity, construction, and effect of statutes or regulations governing practice of veterinary medicine, 8 A.L.R.4th 223.

43-29-03. Officers of board — Seal — Meetings — Limitations on meetings — Examinations — Rules — Code of ethics — Inspection of facilities — Educational requirements — Reciprocity.

  1. The board shall elect a president and a secretary. The board shall have a seal, and the president and the secretary may administer oaths. The board shall hold meetings semiannually in the spring and fall of each year for the examination of candidates at a time and place specified by the board. The board may hold any other meeting it determines necessary at the time and place it designates. No session of the board may exceed two days. A quorum of the board consists of two members and such quorum is sufficient to conduct the business and proceedings of the board, except that any changes in the rules must be taken at a meeting at which all the members are present.
  2. The board may adopt and enforce reasonable rules, and orders that it determines to be necessary to the performance of its duties and the regulation of the practice of veterinary medicine; establish standards for professional conduct, inspection of facilities, and educational requirements for renewal and granting of licenses; prescribe forms for application for examination; prepare and supervise examination of applicants for license to practice veterinary medicine; obtain the services of professional examination agencies in lieu of its own preparation of such examinations; and issue and revoke licenses as provided in this chapter. All rules must be submitted to the attorney general in accordance with chapter 28-32.
  3. The board may, in its discretion, enter reciprocal agreements with the examining boards of other states and nations, governing the granting of licenses to practice veterinary medicine and surgery in this state without the applicant taking a written examination. Under no circumstances, however, may any reciprocal agreement be entered with the board of another state or nation unless the requirements for the granting of licenses in the other state or nation are on an equal or higher standard to the requirements of this state. The board may prescribe by rule any other terms or conditions to be contained in the agreements. The board shall determine the fee for license by reciprocity agreement.

Source:

S.L. 1963, ch. 314, § 3; 1973, ch. 359, § 3; 1997, ch. 376, § 2.

Collateral References.

Validity, construction, and effect of statutes or regulations governing practice of veterinary medicine, 8 A.L.R.4th 223.

43-29-04. Record of proceedings of board — Register of applicants kept by board — Records and register as evidence.

The state board of veterinary medical examiners shall keep a record of all its proceedings and a register of applicants for licenses showing the name of each applicant, the time spent by each applicant in the study and practice of veterinary medicine, surgery, or dentistry, and the name and location of the school, college, or university which granted the applicant a degree or diploma. Such books and records are prima facie evidence of the matters recorded therein.

Source:

S.L. 1963, ch. 314, § 4; 1991, ch. 472, § 2.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-29-05. Compensation and expenses of members of board.

Members of the board may receive for each day during which they are actually engaged in the performance of the duties of their office such per diem as must be fixed by the board. They may also be reimbursed for necessary travel expenses and meals and lodging expenses at the same rate and in the same manner as are elected officials and employees of the state.

The board may select one of its members to attend the annual meeting of the national organization of state examining boards. The member so selected may be reimbursed for necessary travel expenses and meals and lodging expenses at the same rate and in the same manner as are elected officials and employees of the state.

The board may incur no expense exceeding the sum received as fees, as hereinafter provided.

Source:

S.L. 1963, ch. 314, § 5; 1973, ch. 359, § 4.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-29-05.1. Executive secretary.

The board may employ an executive secretary and such other persons as it deems advisable to carry out the purpose of this chapter at such salaries as it may determine.

Each biennium the executive secretary shall prepare the budget of the board for presentation to the executive office of the budget. The executive secretary shall also carry out all routine secretarial and other duties as directed by the board.

Source:

S.L. 1973, ch. 359, § 5.

43-29-06. Graduation from recognized school and certificate or permit from board required.

Only a graduate of the veterinary course offered in a veterinary school, college, or university recognized by the board, and who possesses a certificate of registration issued by the board which is in effect, may engage in the practice of veterinary medicine.

Source:

S.L. 1963, ch. 314, § 6; 1973, ch. 359, § 6; 1991, ch. 472, § 3; 1997, ch. 376, § 3.

Cross-References.

Criminal penalty and injunction for unlawful practice, see N.D.C.C. § 43-29-17.

Collateral References.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Validity, construction, and effect of statutes or regulations governing practice of veterinary medicine, 8 A.L.R.4th 223.

43-29-07. Application for license — Change of address — Display of certificate of registration.

  1. A person desiring a license to practice veterinary medicine in this state shall make written application to the board. The application must show the applicant is a graduate of an accredited college of veterinary medicine or the holder of a certificate. The application must also show the applicant is a person of good moral character and any other information and proof the board may require. The application must be accompanied by a fee in the amount established by the board. If the board determines an applicant possesses the proper qualifications, the board shall admit the applicant to the next examination. If the applicant is eligible for license without examination under section 43-29-07.2, the board may grant the applicant a license. If an applicant is found not qualified to take the examination or for a license without examination, the board shall immediately notify the applicant in writing of this finding and the grounds of this finding. An applicant found unqualified may request a hearing on the question of the applicant’s qualifications.
  2. Each veterinarian licensed by the board, whether a resident or not, shall notify the secretary of any change in that person’s office address or employment within sixty days after the change has taken place. Any person licensed to practice veterinary medicine after the fifteenth day of April, or any person issued a temporary permit to practice veterinary medicine after that date, is exempt from this requirement to pay the annual registration fee until the first day of July of the year following licensure.
  3. Registration is a condition precedent to the practice of veterinary medicine and surgery in this state, and a certificate of registration currently in effect must be on display at all times in the office of each veterinarian engaged in active practice.

Source:

S.L. 1963, ch. 314, § 7; 1973, ch. 359, § 7; 1991, ch. 472, § 4; 1993, ch. 54, § 106; 1997, ch. 376, § 4; 1999, ch. 388, § 2; 2007, ch. 377, § 2.

Notes to Decisions

Nonpayment of Fee As Evidence.

In prosecution under former statute for practicing without a license, it was competent for the secretary of the board to testify to the nonpayment by the defendant of the fee for a license. State v. Ramsey, 31 N.D. 626, 154 N.W. 731, 1915 N.D. LEXIS 218 (N.D. 1915).

43-29-07.1. Veterinary technicians — Examinations.

  1. An applicant for licensure as a veterinary technician must have an examination date offered at least annually at a time, place, and date determined by the board at least ninety days before the scheduled examination.
  2. An applicant for licensure as a veterinary technician must pass the veterinary technician national examination with a score approved by the board.
  3. An applicant for licensure as a veterinary technician who has successfully passed the veterinary technician national examination shall request that the applicant’s examination scores be forwarded to the board. An applicant is eligible for licensure upon meeting the licensure requirements set by the board.

Source:

S.L. 1995, ch. 415, § 4; 1999, ch. 388, § 3.

43-29-07.2. Examination — License without examination — Temporary permit.

  1. The board shall hold at least two examinations a year. The board shall adopt rules governing preparation, administration, and grading of examinations. Examinations must be designed to test the examinee’s knowledge of and proficiency in the subjects and techniques commonly taught in veterinary schools. To pass the examination, the examinee must demonstrate scientific and practical knowledge sufficient to prove competency to practice veterinary medicine in the judgment of the board. An examinee must be tested by written examination, supplemented by any oral interview and practical demonstration the board determines necessary. The board may adopt and use the examination prepared by the national board of veterinary medical examiners. After each examination, the board shall notify each examinee of the result of the examination, and the board shall issue a license to each person who passed the examination. The board shall record each new license and issue a certificate of registration to each new licensee. Any person failing an examination may be admitted to any subsequent examination on approval by the board and payment of the application fee.
  2. The board may issue a license without a written examination to a qualified applicant who furnishes satisfactory proof of graduation from an accredited or approved college of veterinary medicine, or holds a certificate, and who:
    1. Has for the five years immediately before filing of the application been a practicing veterinarian licensed in a state having license requirements at the time the applicant was first licensed which were substantially equivalent to the requirements of this chapter;
    2. Has within the three years immediately before filing the application successfully completed the examinations provided by the national board of veterinary medical examiners; or
    3. Currently holds a license to practice in at least one state, has active diplomat status in a specialty organization recognized by the American veterinary medical association, and whose practice is limited to the certified specialty in the state in which the specialist is licensed without examination.
  3. The board may issue without examination a temporary permit to practice veterinary medicine in this state to:
    1. A qualified applicant for license pending examination, if the temporary permit expires the day after the notice of results of the first examination given after the permit is issued. A temporary permit may not be issued to an applicant who previously has failed the examination in this or any other state or a foreign country.
    2. A nonresident veterinarian validly licensed in another state or a foreign country who pays the fee established and published by the board if the temporary permit is issued for a period of no more than sixty days and no more than one permit is issued to a person during each calendar year.
    3. A senior veterinary student who practices in the office of and under the direct supervision of a licensed veterinarian. A temporary student permit may not exceed six months from its date of issuance and is granted without payment of a fee.
    4. A graduate of a nonaccredited college of veterinary medicine, who has satisfactorily completed the fourth year of clinical study at an accredited or approved college of veterinary medicine, has successfully passed the examination provided by the national board of veterinary medical examiners, and is enrolled in the educational commission for foreign veterinary graduates program. The holder of a temporary permit issued under this subdivision must practice under the supervision of a licensed veterinarian. A temporary permit issued under this subdivision is valid until the holder obtains a certificate or for two years.

Source:

S.L. 1997, ch. 376, § 5; 1999, ch. 388, § 4; 2003, ch. 371, § 1; 2007, ch. 377, § 3.

43-29-07.3. License renewal — Continuing education requirements.

  1. All licenses expire annually as of July first but may be renewed by registration with the board and payment of the registration renewal fee established by the board. On June first of each year, the board shall mail a notice to each licensed veterinarian that the licensee’s license will expire as of July first and provide the licensee with a form for registration. The board shall issue a new certificate of registration to a person reregistering under this section. Any person who willfully or by neglect fails to renew a license and who practices veterinary medicine after the expiration of the license is practicing in violation of this chapter.
  2. Any qualified person may renew an expired license within two years of the date of its expiration by making written application for renewal and paying the current renewal fee plus all delinquent renewal fees. After two years have elapsed since the date of expiration, a license may not be renewed, but the holder may make application for a new license and take the license examination. The board may by rule waive the payment of the registration renewal fee of a licensed veterinarian during the period when the veterinarian is on active duty with any branch of the armed services of the United States, not to exceed the longer of three years or the duration of active duty.
  3. The board may adopt rules establishing requirements for the continuing education of veterinarians and veterinary technicians. The board may refuse to renew or may suspend, revoke, or place on probationary status any license issued under this chapter upon proof the licensee has failed to meet the applicable continuing education requirements. Applicants for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source:

S.L. 1997, ch. 376, § 6.

43-29-08. Certificate of qualification issued to applicants passing examination — Conclusiveness of certificate — Re-examination. [Repealed]

Repealed by S.L. 1997, ch 376, § 12.

43-29-08.1. Veterinary technician — Renewal of license.

  1. A license issued to a veterinary technician under this chapter expires on December thirty-first.
  2. A veterinary technician shall submit renewal fees and current mailing address before December thirty-first on an application form provided and mailed to the licenseholder by the board.
  3. A veterinary technician shall submit evidence of completion of required continuing education credits in the veterinary field during the calendar year in order to apply for a license renewal.
  4. Failure to submit the appropriate license renewal fee every year results in forfeiture of all rights and privileges under this chapter and the veterinary technician may not perform veterinary technician services unless the veterinary technician pays a delinquency fee in addition to the license renewal fee.

Source:

S.L. 1995, ch. 415, § 6.

43-29-09. Limited specialty license — Graduate veterinary technicians.

  1. The board may issue a limited specialty license for the practice of that specialty in this state to a veterinarian, licensed in another state, who has passed a nationally recognized specialty board examination and who otherwise meets the qualifications to practice in this state. All limited specialty licenses regardless of when issued expire on June thirtieth of each year and may be renewed in the discretion of the board. All veterinarians holding a limited specialty license are subject to this chapter during the term of the license. Fees for a limited specialty license are the same as for a regular license.
  2. The board may adopt rules for the training, certification, and limits of activity for veterinary assistants and shall adopt rules for the licensing, training, certification, and limits of activity for veterinary technicians being trained and employed under the direct supervision and responsibility of a licensed veterinarian. All veterinary technicians must be registered with and subject to requirements established by the board.

Source:

S.L. 1963, ch. 314, § 9; 1973, ch. 359, § 9; 1991, ch 472, § 6; 1995, ch. 415, § 2; 1997, ch. 376, § 7.

43-29-10. Display of license and certificate.

A person may not practice veterinary medicine in the state of North Dakota without possessing and displaying prominently in the person’s principal office a license and a current and valid certificate of renewal issued pursuant to the provisions of this chapter.

Source:

S.L. 1963, ch. 314, § 10.

43-29-11. Fees deposited with state treasurer — Separate fund — Vouchers.

All moneys and fees collected or received by the board under the provisions of this chapter must be deposited with the state treasurer to be held for all legitimate expenses of the board. The state treasurer shall keep such moneys in a separate fund continued from year to year and shall disburse the same only on warrants drawn against such fund by the president or the executive secretary of the board.

Source:

S.L. 1963, ch. 314, § 11; 1973, ch. 359, § 10; 1975, ch. 410, § 1; 1991, ch. 472, § 7.

Cross-References.

Deposit and disbursement of funds of occupational and professional boards, see N.D.C.C. § 54-44-12.

43-29-12. Veterinary medicine defined. [Repealed]

Repealed by S.L. 1997, ch. 376, § 12.

43-29-12.1. Veterinary technician services — Emergency services — Prohibited services.

  1. A veterinary technician may perform the following services under the direction, supervision, and control of a licensed veterinarian, provided the licensed veterinarian performs a daily physical examination of the animal being treated:
    1. Venipuncture, including insertion of an indwelling catheter when required.
    2. Catheterizing the urinary bladder.
    3. Injection, including hypodermic injection and parenteral fluids, except when in conflict with a government regulation.
    4. Immunization immediately after examination by a licensed veterinarian, except when in conflict with a government regulation.
    5. Inducing, maintaining, and monitoring anesthesia under the direct supervision of the licensed veterinarian.
    6. Exposing and developing radiographic film.
    7. Collecting and administering whole blood or plasma to an animal.
    8. Assisting in surgery as directed by the licensed veterinarian.
    9. Taking electrocardiogram and electroencephalogram tracings.
    10. Performing routine laboratory procedures, including hematology, serology, microbiology, cytology, chemistry, urinalysis, fecal analysis, and skin scrapings.
    11. Administering colonic irrigations and wound dressings.
    12. Operating ultrasonic and polishing instruments for dental prophylaxis.
    13. Preparing animals for surgery, including clipping, scrubbing, and disinfecting an operative site.
    14. Preparing medicants for dispensing to clients on the direct or written order of the licensed veterinarian.
    15. Maintaining surgery, x-ray, and laboratory logs and pharmacy records.
  2. Under emergency conditions, a veterinary technician may perform the following treatments:
    1. Applying tourniquets and pressure bandages to control hemorrhage.
    2. Administering pharmacological agents and parenteral fluids only after direct communication with a licensed veterinarian, if the veterinarian is present or en route to the location of the distressed animal.
    3. Performing resuscitative oxygen procedures.
    4. Applying temporary splints or bandages to prevent further injury to bones or soft tissues.
    5. Applying appropriate wound dressings and external supportive treatment in severe burn cases.
    6. Providing external supportive treatment in heat prostration cases.
  3. A veterinary technician may not perform the following services unless the veterinary technician is acting as a surgical assistant to a licensed veterinarian under this chapter:
    1. Making a diagnosis.
    2. Prescribing a treatment.
    3. Performing surgery.

Source:

S.L. 1995, ch. 415, § 5.

43-29-13. Practices excepted from chapter.

The following persons may not be considered to be engaging in the practice of veterinary medicine in this state:

  1. Those who administer to livestock, the title to which rests in themselves, or in their regular employer, except when the ownership of the animal was transferred to avoid the requirements of this chapter, or those who perform gratuitous services.
  2. Anyone who conducts experiments in scientific research in the development of methods, techniques, or treatment, directly or indirectly applicable to the problems of medicine, and who in connection with these activities uses animals.
  3. Anyone who is a regular student in an accredited or approved college of veterinary medicine performing duties or actions assigned by an instructor or working under the direct supervision of a licensed veterinarian during a school vacation period.
  4. Anyone licensed in another state or nation when engaged in this state in consultation with veterinarians legally practicing herein.
  5. A senior student who is in an approved school of veterinary medicine and who obtains from the board a student permit to practice in the office and under the direct supervision of any veterinarian practicing within this state.
  6. Any employee of the United States or this state while in the performance of duties as employees.
  7. Any merchant or manufacturer selling medicine, feed, an appliance, or any other product used in the prevention or treatment of animal diseases.
  8. Any veterinary technician or other employee of a licensed veterinarian performing duties under the direction and supervision of the veterinarian responsible for the technician’s or other employee’s performance.
  9. Any member of the faculty of an accredited college of veterinary medicine performing regular functions or a person lecturing or giving instructions or demonstrations at an accredited college of veterinary medicine or in connection with a continuing education course or seminar.
  10. Any person selling or applying any pesticide, insecticide, or herbicide.
  11. Any graduate of a foreign college of veterinary medicine who is in the process of obtaining a certificate and is performing duties or actions assigned by the graduate’s instructors in an accredited college of veterinary medicine.
  12. Any person performing a direct embryo transfer procedure on a recipient cow. Except as provided in this subsection, a person performing a direct embryo transfer procedure on a recipient cow may not administer prescription drugs to the cow during, or as part of, the procedure. The owner of the recipient cow, however, may administer or cause the administration of prescription drugs to the recipient cow during, or as part of, the procedure if a veterinarian-client-patient relationship exists.

Source:

S.L. 1963, ch. 314, § 13; 1973, ch. 359, § 11; 1991, ch. 472, § 9; 1995, ch. 415, § 3; 1997, ch. 376, § 8; 1999, ch. 389, § 1; 2007, ch. 377, § 4.

43-29-14. Refusal, suspension, and revocation of license and certificate — Reinstatement and relicense.

  1. The state board of veterinary medical examiners may refuse to issue a license or certificate of registration, or may suspend or revoke a license and certificate of registration, upon any of the following grounds:
    1. Fraud or deception in procuring the license, including conduct that violates the security or integrity of any licensing examination.
    2. The use of advertising or solicitation that is false, misleading, or otherwise determined unprofessional under rules adopted by the board.
    3. Habitual intemperance in the use of intoxicating liquors, or habitual addiction to the use of morphine, cocaine, or other habit-forming drugs.
    4. Immoral, unprofessional, or dishonorable conduct manifestly disqualifying the licensee from practicing veterinary medicine.
    5. Incompetence, gross negligence, or other malpractice in the practice of veterinary medicine.
    6. Employment of unlicensed persons to perform work that under this chapter can lawfully be done only by persons licensed to practice veterinary medicine.
    7. Fraud or dishonest conduct in applying or reporting diagnostic biological tests, inspecting foodstuffs, or in issuing health certificates.
    8. Failure of the licensee to keep the premises and equipment used in the licensee’s practice in a reasonably clean and sanitary condition and failure to use reasonably sanitary methods in the practice of veterinary medicine.
    9. Violation of the rules adopted by the board.
    10. Conviction of an offense determined by the board to have a direct bearing upon a person’s ability to serve the public as a veterinarian, or when the board determines, following conviction of any offense, that a person is not sufficiently rehabilitated under section 12.1-33-02.1.
    11. Willful or repeated violations of this chapter or any rule adopted by the board.
    12. Failure to report, as required by law, or making false report of, any contagious or infectious disease.
    13. Cruelty to animals.
    14. Revocation of a license to practice veterinary medicine by another state on grounds other than nonpayment of a registration fee.
    15. The use, prescription, or dispensing of any veterinary prescription drug, or the prescription or extra-label use of any over-the-counter drug, in the absence of a valid veterinarian-client-patient relationship, except as provided by section 43-29-19.
  2. Any person whose license has been revoked may apply to the board for reinstatement and relicensure one year after the date of revocation. The board may reissue a license if the board is satisfied the applicant is qualified to practice veterinary medicine, meets the existing requirements for licensure, and will comply with the rules regarding the practice of veterinary medicine.

Source:

S.L. 1963, ch. 314, § 14; 1973, ch. 359, § 12; 1977, ch. 130, § 49; 1991, ch. 472, § 10; 1997, ch. 376, § 9; 2007, ch. 377, § 5; 2011, ch. 320, § 1.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Validity, construction, and effect of statutes or regulations governing practice of veterinary medicine, 8 A.L.R.4th 223.

Veterinarian’s liability for malpractice, 71 A.L.R.4th 811.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

43-29-15. Complaints — Investigations.

  1. Any person may file a written complaint with the board setting forth the specific charges upon which the complaint is made. Upon receiving a complaint, the board shall notify the veterinarian of the complaint and request a written response from the veterinarian. The board may adopt rules establishing a peer review committee for the purpose of investigating complaints and providing recommendations to the board. A veterinarian who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any reasonable question raised by or on behalf of the board relating to the subject of the investigation and providing copies of records when reasonably requested by the board.
  2. To pursue the investigation, the board may subpoena and examine witnesses and records, including medical records, copy, photograph, or take samples. The board may require the veterinarian to give statements under oath, to submit to a physical or psychological examination, or both, by a physician or other qualified evaluation professional selected by the board if it appears to be in the best interest of the public that this evaluation be secured. After review of the complaint, the veterinarian’s response, and information obtained in the investigation, the board shall determine if there is a reasonable basis to believe the allegations are true and that the allegations constitute a violation of this chapter or the rules of the board. If the board determines there is a reasonable basis to believe the allegations are true and the allegations constitute a violation of this chapter or the rules of the board, the board shall take appropriate action. If a reasonable basis is not found by the board, the board shall notify the complaining party and the veterinarian in writing.

Source:

S.L. 1963, ch. 314, § 15; 1973, ch. 359, § 13; 1991, ch. 472, § 11; 1997, ch. 376, § 10.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-29-16. Proceedings on revocation or suspension of license — Appeals — Costs of prosecution — Disciplinary proceedings.

  1. All proceedings relative to the issuance, revocation, or suspension of a license, or relative to reissuing a license that has been revoked must be conducted pursuant to chapter 28-32. An appeal from the final decision of the board in any matter covered by this chapter may be taken to the district court of Burleigh County or the aggrieved party’s county of residence in accordance with chapter 28-32.
  2. In any order or decision issued by the board in which disciplinary action is imposed against a licensee, the board may direct the licensee to pay the board a sum not to exceed the reasonable and actual costs, including attorney’s fees, incurred by the board in the investigation and prosecution of the case. When applicable, the licensee’s license may be suspended until the costs are paid to the board.

Source:

S.L. 1963, ch. 314, § 16; 1997, ch. 376, § 11.

43-29-16.1. Abandonment of animals by owner.

  1. Any animal placed in the custody of a licensed doctor of veterinary medicine for treatment, boarding, or other care, which is abandoned by its owner or its owner’s agent for a period of more than ten days after a written notice, by registered or certified letter, return receipt requested, is given to the owner or its owner’s agent at the last-known address, may be turned over to the custody of the nearest humane society or dog pound in the area or disposed of as such custodian may deem proper.
  2. The giving of notice to the owner, or the agent of the owner, of such animal by the doctor of veterinary medicine, as provided in subsection 1, shall relieve the doctor of veterinary medicine and any custodian to whom such animal may be given of any further liability for disposal; it is further provided that such procedure by the licensed doctor of veterinary medicine does not constitute grounds for disciplinary procedure under this chapter.
  3. For the purpose of this section, the term “abandoned” means to forsake entirely or to neglect or refuse to provide or perform the care and support of an animal by its owner or its owner’s agent; such abandonment constitutes the relinquishment of all rights and claim by the owner of such animal.

Source:

S.L. 1973, ch. 359, § 14; 1991, ch. 472, § 12.

Cross-References.

Humane treatment of animals and treatment of animals, generally, see N.D.C.C. chs. 36-21.1 and 36-21.2.

43-29-17. Unlawful practice of veterinary medicine — Penalty — Civil remedy.

Any person who:

  1. Practices veterinary medicine, surgery, or dentistry in this state without compliance with the provisions of this chapter;
  2. Willfully and falsely claims or pretends to have or hold a certificate of registration issued by the state board of veterinary medical examiners; or
  3. Willfully and falsely, with intent to deceive the public, claims or pretends to be a graduate of, or to hold a degree or diploma showing the satisfactory completion of a course in veterinary science in a school, college, or university recognized by the board;

is guilty of a class B misdemeanor. In addition to the criminal penalty provided, the civil remedy of injunction is available to restrain and enjoin violations of any provisions of this chapter without proof of actual damages sustained by any person, upon application and unanimous vote of all members of the state board of veterinary medical examiners.

Source:

S.L. 1963, ch. 314, § 17; 1967, ch. 356, § 1; 1973, ch. 359, § 15; 1975, ch. 106, § 502.

Notes to Decisions

Collection of Fee As Evidence.

In prosecution for practicing without a license, evidence that defendant charged and collected a fee was admissible although the collection of a fee is not an essential element of the offense. State v. Ramsey, 31 N.D. 626, 154 N.W. 731, 1915 N.D. LEXIS 218 (N.D. 1915).

Meaning of “Practice”.

In order to be guilty of unlicensed “practice” of veterinary dentistry, it is not essential that the accused shall have practiced dentistry habitually or frequently. State v. Ramsey, 31 N.D. 626, 154 N.W. 731, 1915 N.D. LEXIS 218 (N.D. 1915).

43-29-18. Effect of invalidity of part of this chapter. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

43-29-19. Veterinary prescription drugs.

  1. Except as provided under subsection 2, a veterinary prescription drug must be dispensed, used, or prescribed within the context of a veterinarian-client-patient relationship.
  2. Other than a controlled substance, a licensed veterinarian may dispense a veterinary prescription drug without establishing a veterinarian-client-patient relationship if:
    1. The drug is prescribed by a licensed veterinarian or by a veterinarian licensed in another jurisdiction who has established a veterinarian-client-patient relationship;
    2. The prescribing veterinarian has an inadequate supply of the drug, failure to dispense the drug would interrupt a therapeutic regimen, or failure to dispense the drug would cause an animal to suffer; and
    3. The dispensing veterinarian verifies the prescription with the prescribing veterinarian.

Source:

S.L. 2011, ch. 320, § 2.

CHAPTER 43-29.1 Veterinarian Loan Repayment Program

43-29.1-01. Loan repayment program — Veterinarians — Maximum amount of funds.

Each year the state health council, in consultation with the state board of animal health, shall select qualified applicants to participate in a loan repayment program, as provided for in this chapter. Each applicant must be a veterinarian and must agree to provide food animal veterinary medicine services to communities in this state. The selected applicants are eligible to receive up to eighty thousand dollars in loan repayment funds. The number of applicants that the council may select for participation in the loan repayment program is limited only by the moneys available to support the program, as provided for in this chapter.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 1.

43-29.1-02. Loan repayment program — Veterinarians — Powers of state health council. [Effective through August 31, 2022]

The state health council may:

  1. Determine the eligibility and qualifications of an applicant for loan repayment funds under this chapter;
  2. Identify communities that are in need of a veterinarian and establish a priority ranking for participation in the program by the selected communities;
  3. Create and distribute a loan repayment application;
  4. Determine the amount of the loan repayment funds for which an applicant may be eligible under this chapter and, in making this determination, examine any outstanding education loans incurred by the applicant;
  5. Establish conditions regarding the use of the loan repayment funds;
  6. Enter a nonrenewable contract with the selected applicant and the selected community to provide to the applicant funds for the repayment of education loans in exchange for the applicant agreeing to actively practice in the selected community;
  7. Receive and use funds appropriated for the program;
  8. Enforce any contract under the program;
  9. Cancel a contract for reasonable cause;
  10. Participate in federal programs that support the repayment of education loans incurred by veterinarians and agree to the conditions of the federal programs;
  11. Accept property from an entity; and
  12. Cooperate with the state department of health to effectuate this chapter.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 2.

43-29.1-02. Loan repayment program — Veterinarians — Powers of state health council. [Effective September 1, 2022]

The state health council may:

  1. Determine the eligibility and qualifications of an applicant for loan repayment funds under this chapter;
  2. Identify communities that are in need of a veterinarian and establish a priority ranking for participation in the program by the selected communities;
  3. Create and distribute a loan repayment application;
  4. Determine the amount of the loan repayment funds for which an applicant may be eligible under this chapter and, in making this determination, examine any outstanding education loans incurred by the applicant;
  5. Establish conditions regarding the use of the loan repayment funds;
  6. Enter a nonrenewable contract with the selected applicant and the selected community to provide to the applicant funds for the repayment of education loans in exchange for the applicant agreeing to actively practice in the selected community;
  7. Receive and use funds appropriated for the program;
  8. Enforce any contract under the program;
  9. Cancel a contract for reasonable cause;
  10. Participate in federal programs that support the repayment of education loans incurred by veterinarians and agree to the conditions of the federal programs;
  11. Accept property from an entity; and
  12. Cooperate with the department of health and human services to effectuate this chapter.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 2; 2021, ch. 352, § 363, effective September 1, 2022.

43-29.1-03. Veterinarian selection criteria — Eligibility for loan repayment.

  1. In establishing the criteria regarding eligibility for loan repayment funds under this chapter, the state health council shall consider the applicant’s:
    1. Training in food animal veterinary medicine, ability, willingness to engage in food animal veterinary medicine, and the extent to which such services are needed in a selected community;
    2. Commitment to serve in a community that is in need of a veterinarian;
    3. Compatibility with a selected community;
    4. Date of availability for service to the selected community; and
    5. Competence and professional conduct.
  2. An applicant selected to receive loan repayment funds under this chapter:
    1. Must have graduated from an accredited college of veterinary medicine;
    2. Must be licensed to practice veterinary medicine in this state; and
    3. Must be employed full-time in the private practice of veterinary medicine.
  3. A selected applicant shall contract to provide full-time veterinary medicine services for two, three, or four years in one or more selected communities.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 3; 2015, ch. 4, § 4, effective July 1, 2015.

43-29.1-04. Community selection criteria.

  1. In selecting a community with a defined need for the services of a veterinarian, the health council shall consider:
    1. The size of the community and give priority:
      1. First to rural communities having a population under five thousand;
      2. Second to communities having a population between five thousand and ten thousand; and
      3. Third to communities having a population greater than ten thousand.
    2. The number of veterinarians practicing in the community and the surrounding area.
    3. The access by residents to veterinarians practicing in the community and the surrounding area.
    4. The degree to which residents support the addition of a veterinarian within the community.
  2. The state health council shall give priority for participation to a community that demonstrates a need for a veterinarian.
  3. In evaluating communities for participation in this program, the state health council may consult with public and private entities and visit the communities.

Source:

S.L. 2007, ch. 378, § 1.

43-29.1-05. Eligible loans.

The state health council may provide for loan repayment funds to a veterinarian who has received an education loan. The council may not provide funds for the repayment of a loan that is in default at the time of the application. The amount of the repayment must be related to the veterinarian’s outstanding education loans.

Source:

S.L. 2007, ch. 378, § 1.

43-29.1-06. Release from contract obligation.

  1. The state health council shall release a veterinarian from the veterinarian’s loan repayment contract without penalty if:
    1. The veterinarian has completed the service requirements of the contract;
    2. The veterinarian is unable to complete the service requirement of the contract because of a permanent physical disability;
    3. The veterinarian demonstrates to the state health council extreme hardship or shows other good cause justifying the release; or
    4. The veterinarian dies.
  2. A decision by the state health council not to release a veterinarian from the veterinarian’s loan repayment contract without penalty is reviewable by district court.

Source:

S.L. 2007, ch. 378, § 1.

43-29.1-07. Loan repayment.

    1. Upon completing six months of the first year of service, as required by the contract, the veterinarian is eligible to receive a loan payment in an amount up to fifteen thousand dollars.
    2. Upon completing a second year of service, as required by the contract, the veterinarian is eligible to receive a loan payment in an amount up to fifteen thousand dollars.
    3. Upon completing a third year of service, as required by the contract, the veterinarian is eligible to receive a loan payment in an amount up to twenty-five thousand dollars.
    4. Upon completing a fourth year of service, as required by the contract, the veterinarian is eligible to receive a loan payment in an amount up to twenty-five thousand dollars.
  1. All payments under this section must be made on the veterinarian’s behalf to the issuer of the student loan.
  2. A veterinarian is not entitled to receive more than eighty thousand dollars under this section.
  3. If an individual fails to complete an entire year of service, the amount repayable under this section for that year must be prorated.
  4. If any moneys remain in the state veterinary loan repayment account after the health council has met all statutory and contractual obligations established under this chapter, the health council may use the moneys to increase the number of veterinarians participating in the loan repayment program.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 4.

43-29.1-08. Gifts, grants, and donations — Continuing appropriation.

  1. The state health council may accept any conditional or unconditional gifts, grants, and donations for the purpose of providing moneys for the repayment of veterinarians’ education loans. However, if an entity desires to provide moneys to the state health council for the location of a veterinarian in or at a specific site, the entity shall commit to provide the full amount required under this program for a period of four years.
  2. The state health council may contract with a public or private entity and may expend any moneys available to the council to obtain matching funds for the purposes of this chapter.
  3. All moneys received as gifts, grants, or donations under this section are appropriated on a continuing basis to the state health council for the purpose of increasing the number of veterinarians participating in the loan repayment program under this chapter.

Source:

S.L. 2007, ch. 378, § 1; 2011, ch. 321, § 5.

CHAPTER 43-30 Investigative and Security Services

43-30-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the private investigative and security board.
  2. “Employee” means an employee under a contract of employment as defined in chapter 34-01, and not an independent contractor as defined by the common-law test.
  3. “Executive director” means a person appointed by the board on a full-time or part-time basis to be responsible and accountable to the board for the proper administration of the board’s duties.
  4. “License” includes a registration issued by the board.
  5. “Licensee” includes an individual who is registered by the board.
  6. “Private investigative service” means, for a fee, reward, or other consideration, undertaking any of the following acts for the purpose of obtaining information for others:
    1. Investigating the identity, habits, conduct, movements, whereabouts, transactions, reputation, or character of any person or organization;
    2. Investigating the credibility of persons;
    3. Investigating the location or recovery of lost or stolen property, missing persons, owners of abandoned property or escheated property, or heirs to estates;
    4. Investigating the origin of and responsibility for libels, losses, accidents, or damage or injuries to persons or property;
    5. Investigating the affiliation, connection, or relationship of any person, firm, or corporation with any organization, society, or association, or with any official, representative, or member thereof;
    6. Investigating the conduct, honesty, efficiency, loyalty, or activities of employees, persons seeking employment, agents, or contractors and subcontractors;
    7. Investigating or obtaining evidence to be used before any authorized investigating committee, board of award, board of arbitration, administrative body, or officer or in preparation for trial of civil or criminal cases; or
    8. Investigating the identity or location of persons suspected of crimes or wrongdoing.
  7. “Private security service” means furnishing for hire security officers or other persons to:
    1. Protect persons or property;
    2. Prevent or detect theft or the unlawful taking of goods, wares, or merchandise, or to prevent the misappropriation or concealment of goods, wares, merchandise, money, bonds, stocks, choses in action, notes, or other valuable documents or papers;
    3. Control, regulate, or direct the flow of or movements of the public, whether by vehicle or otherwise, to assure protection of private property;
    4. Prevent or detect intrusion, unauthorized entry or activity, vandalism, or trespass on private property;
    5. Perform the service of a security officer or other person for any of these purposes; or
    6. Transport money or negotiable securities to or from a financial institution or between business locations on a regular or daily basis, except for mail delivery.

Source:

S.L. 1963, ch. 315, § 1; 1983, ch. 487, § 1; 1985, ch. 488, § 1; 1989, ch. 533, § 1; 2001, ch. 387, § 1; 2005, ch. 367, § 1; 2021, ch. 319, § 1, effective July 1, 2021.

Collateral References.

Husband’s liability for expenses incurred by wife in investigating his marital transgressions, 99 A.L.R.2d 264.

Privacy: investigations and surveillance, shadowing and trailing as violation of right of privacy, 13 A.L.R.3d 1025.

Liability of one hiring private investigator or detective for tortious acts committed in course of investigation, 73 A.L.R.3d 1175.

Actions of security service company’s employee as rendering company liable under contract to protect persons or property, 83 A.L.R.4th 1150.

43-30-02. Exemptions.

This chapter does not apply to:

  1. Any investigator or officer directly employed by or under any direct contract with the federal government, state, or any county or city thereof, appointed, elected, or contracted with, by due authority of law, while engaged in the performance of official duties. Subcontractors of agencies directly contracted with these entities are not exempted.
  2. Any state’s attorney.
  3. Any attorneys or counselors at law in the regular practice of their profession and any paralegal or legal assistant employed by an attorney or law firm when the attorney or law firm retains complete responsibility for the work product of the paralegal or legal assistant.
  4. Any person engaged exclusively in obtaining and furnishing information as to the financial standing, rating, and credit responsibility of persons or as to the personal habits and financial responsibilities of applicants for insurance, indemnity bonds, or commercial credit.
  5. A collection agency or finance company licensed to do business under the laws of this state, or an employee of one of those companies, while acting within the scope of employment when making an investigation incidental to the business of the agency, including an investigation as to location of a debtor and of the debtor’s assets or property, provided the client has a financial interest in or a lien upon the assets or property of the debtor.
  6. Any person making any investigation of any matter in which that person or the person by whom that person is solely employed is interested or involved.
  7. A person whose sole investigative business is obtaining or furnishing information about acts or individuals from public records, other than those investigating the location or recovery of abandoned or escheated property, owners of abandoned or escheated property, or heirs to estates.
  8. An expert who specializes in a specific, limited area of practice, including automotive accident reconstructions, fire origin and cause investigations, technical surveillance countermeasures, handwriting analysis, auditor, accountant or accounting clerk performing audits or accounting functions, or other areas of practice covered by other licensure in the state, and other areas determined by the board, that fall within the individual’s scope of employment, incidental to the investigative profession.
  9. Persons reporting for any media, including news reporters or news investigators.
  10. A person providing mystery or secret shopping services, or providing a similar service, used for evaluating customer service, products, services, pricing, locations, or consumer issues so long as the evaluation is not for purposes of litigation or discovering violations of law.

Source:

S.L. 1963, ch. 315, § 2; 1983, ch. 487, § 2; 2001, ch. 387, § 2; 2005, ch. 367, § 2; 2007, ch. 379, § 1.

Notes to Decisions

Applicability.

Where a defendant charged with falsely representing that he was employed by an investigative agency was neither investigating a matter for himself nor for someone by whom he was employed, he was not exempt from prosecution under subsection (5). State v. Treis, 1999 ND 136, 597 N.W.2d 664, 1999 N.D. LEXIS 156 (N.D. 1999).

43-30-02.1. Fair housing law compliance — Exception — Penalty.

This chapter does not apply to a person testing for fair housing law compliance who is employed by or volunteers with an organization recognized for this purpose under federal or state law and who meets the requirements, except for actual registration, of a registered private investigator established by the board. These requirements include a state and nationwide criminal history background record check conducted by the bureau of criminal investigation and the federal bureau of investigation. The results of the state and nationwide criminal history background record check must be on file with the organization. The board, at its request, may review the criminal history background record check and other information related to any person conducting the compliance test. Any person who knowingly violates the requirements for an exception under this section is guilty of a class B misdemeanor.

Source:

S.L. 2005, ch. 367, § 3.

43-30-02.2. Proprietary security.

A proprietary employer is a person who employs an individual to provide security for that person’s own property or protection. A proprietary employer is not required to be licensed as a private security service if the employer does not offer or provide security services to others. Proprietary security employees may be voluntarily registered as security officers under section 43-30-06. In order to be registered as a proprietary security officer, an employee must meet all of the requirements to be registered as a security officer except for:

  1. Employment by a licensed private security service; and
  2. Supervision by an individual who is licensed to provide security services.

Source:

S.L. 2007, ch. 380, § 1.

43-30-03. Private investigative and security board.

The governor shall appoint a private investigative and security board. The board must consist of not fewer than five nor more than eleven members appointed for staggered four-year terms. When making appointments, the governor shall consider whether there is member representation from the western, central, and eastern geographic regions of the state. Each member of the board must be knowledgeable in private investigative or private security matters. A majority of the members of the board must be actively engaged in the private investigative or security profession, with at least one member actively engaged in law enforcement. Members of the board may not receive compensation for service on the board, but are entitled to receive reimbursement for expenses incurred in performing official duties in the amounts provided by law for state employees.

Source:

S.L. 1963, ch. 315, §§ 3, 3a; 1983, ch. 487, § 3; 1989, ch. 533, § 2; 2005, ch. 367, § 4; 2021, ch. 320, § 1, effective August 1, 2021.

Note.

SECTION 2. APPLICATION. This Act applies to board appointments made on and after the effective date of this Act.

Section 2 of chapter 481, S.L. 2021, provides: “ APPLICATION. This Act applies to board appointments made on and after the effective date of this Act.”

43-30-04. Powers of the board.

  1. The board shall establish by rule the qualifications and procedures for classifying, qualifying, licensing, bonding, and regulating persons providing private investigative and security services, including armed security personnel. The rules adopted under this section addressing qualifications of security officers must recognize active members of the national guard and former members of the national guard, reserve, or regular armed forces of the United States, who were not dishonorably discharged, as having met any related experience requirements. All rules adopted by the board and appeals therefrom must be in accordance with chapter 28-32.
  2. The board may hire office personnel deemed necessary by it for carrying on its official duties and shall set the compensation to be paid to the personnel.

Source:

S.L. 1963, ch. 315, § 4; 1975, ch. 411, § 1; 1983, ch. 487, § 4; 1985, ch. 488, § 2; 1989, ch. 533, § 3; 1999, ch. 390, § 1; 2007, ch. 381, § 1; 2017, ch. 302, § 1, effective August 1, 2017.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-30-04.1. Continuing education requirements.

The board may adopt rules establishing the requirements for the continuing education of persons licensed under this chapter. The board may refuse to renew, suspend, or revoke any license issued under this chapter or place on probationary status any licensee on proof that the licensee has failed to meet the applicable continuing education requirements. Applicants for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee as determined by the board.

Source:

S.L. 1997, ch. 377, § 6.

43-30-05. License required to provide private investigative or security services — Exclusivity.

A person may not provide private investigative or security services without a license issued by the board. Notwithstanding any other law or ordinance, a person may not be required to obtain a license to provide private investigative or security services in this state other than the license required by this chapter.

Source:

S.L. 1963, ch. 315, § 5; 1973, ch. 120, § 52; 1975, ch. 411, § 2; 1977, ch. 130, § 50; 1981, ch. 435, § 17; 1983, ch. 487, § 5; 1989, ch. 533, § 4.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-30-05.1. Temporary license or registration.

The board may issue a temporary license or registration upon payment of the required application fee and satisfaction of all other requirements set by the board for licensure or registration under this chapter except for completion of a nationwide criminal history record check on the applicant under section 43-30-06. A temporary license or registration issued under this section expires without further action by the board on the date the board receives the results of the nationwide criminal history record check on the applicant. An additional fee may not be charged for the temporary license or registration, but an application fee is not refundable if the board denies the application.

Source:

S.L. 1999, ch. 390, § 3.

43-30-05.2. Peace officers.

Notwithstanding section 12.1-13-04, the board may issue a license to an individual who is a peace officer if the license issued to that peace officer under chapter 12-63 is on inactive status.

Source:

S.L. 2011, ch. 322, § 2.

43-30-06. License and registration applications.

Every person who desires to obtain a license or registration, including nonlicensed members, partners, officers, and owners of at least ten percent interest in the entity, shall apply to the board on applications prepared and furnished by the board. Each application must include the information required by the board and must be accompanied by the required fee. As a requirement of receiving a license or registration, the board shall require each applicant to submit to a state and nationwide criminal history background record check. The nationwide criminal history background record check must be conducted in the manner provided in section 12-60-24. All costs associated with the criminal history background record check are the responsibility of the applicant. Criminal history records provided to the board pursuant to this section are confidential and closed to the public and may be used by the board for the sole purpose of determining an applicant’s eligibility for licensure and obtaining documentation to support a denial of licensure. A criminal history background record check is not required under this section if an applicant for registration has previously been the subject of a state and nationwide criminal history background record check, has held a registration issued by the board within the sixty days immediately preceding the application, and is applying for a new registration due solely to a change in employment. A nationwide criminal history background record check is not required under this section if an applicant for licensure or registration provides to the board the results of a nationwide criminal history background record check performed by the federal bureau of investigation at the request of another state and if the nationwide criminal history background record check was performed within the sixty days immediately preceding the date of the application. A state criminal history background record check is not required under this section if an applicant for registration provides to the board the results of a state criminal history background record check performed by the state in which the applicant currently resides and if the state criminal history background record check was performed within the sixty days immediately preceding the date of the application.

Source:

S.L. 1963, ch. 315, § 6; 1983, ch. 487, § 6; 1989, ch. 533, § 5; 1997, ch. 377, § 1; 1999, ch. 390, § 2; 2005, ch. 111, § 9; 2009, ch. 373, § 1.

43-30-07. Contents of license — Posting. [Repealed]

Repealed by S.L. 1983, ch. 487, § 13.

43-30-08. Duplicate licenses.

If a loss of a license is shown to the satisfaction of the board, a duplicate thereof must be issued by the board upon payment of the required fee.

Source:

S.L. 1963, ch. 315, § 8; 1989, ch. 533, § 6.

43-30-09. Detective agency license.

The board may establish by rule the procedures to be followed by a private investigator to operate a detective agency.

Source:

S.L. 1963, ch. 315, § 9; 1975, ch. 411, § 4; 1983, ch. 487, § 7; 1989, ch. 533, § 7.

43-30-10. Penalty — Injunction — Unlicensed activity.

Any person who violates this chapter or rules adopted under this chapter, or any person who provides a private investigative service or private security service without a current license issued by the board, or falsely states or represents that the person has been or is an investigative officer or employed by an investigative or security officer or agency is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of an injunction is available to restrain and enjoin violations of any provisions of this chapter, without proof of actual damages sustained by any person. An injunction does not preclude criminal prosecution and punishment of a violator. The board is not liable for the lost income, costs, or any other expenses that may be incurred by a person against whom an injunction is sought, and the board may not be required to provide security or a bond. The board may seek costs for reimbursement of expenses for obtaining an injunction, including attorney’s fees. In addition to issuing the injunction, the court may impose an administrative fee consistent with section 43-30-10.1 if the person has violated a provision of this chapter. The board may seek an injunction, impose administrative fees, or seek an order of abatement through an administrative action or in district court.

Source:

S.L. 1963, ch. 315, § 10; 1975, ch. 106, § 503; 1983, ch. 487, § 8; 1997, ch. 377, § 2; 2005, ch. 368, § 1; 2021, ch. 319, § 2, effective July 1, 2021.

Notes to Decisions

Administrative Fee.

Company was not subject to the imposition of an administrative fee for alleged unlicensed operations in North Dakota because such a fee could only be imposed in conjunction with the issuance of an injunction, which was not issued. N.D. Private Investigative & Sec. Bd. v. TigerSwan, LLC, 2019 ND 219, 932 N.W.2d 756, 2019 N.D. LEXIS 228 (N.D. 2019).

Elements.

Where the criminal complaint charged the defendant with providing private investigative services without a license, in violation of N.D.C.C. § 43-30-05 and this section, and the complaint was amended two months before trial to charge one count of falsely representing that defendant was employed by an investigative agency, the defendant had adequate notice of the charges against him. State v. Treis, 1999 ND 136, 597 N.W.2d 664, 1999 N.D. LEXIS 156 (N.D. 1999).

Injunctions.

Trial court did not erroneously hold the North Dakota Private Investigative and Security Board (Board) was only entitled to an injunction if the Board proved damages due to a company’s unlicensed current or future operations because the court held the Board did not show the company was currently operating in North Dakota or was expected to return in the near future. N.D. Private Investigative & Sec. Bd. v. TigerSwan, LLC, 2019 ND 219, 932 N.W.2d 756, 2019 N.D. LEXIS 228 (N.D. 2019).

43-30-10.1. Issuance of citations for unauthorized practice — Administrative fee — Appeal.

  1. The board may issue a citation to a person who the board finds probable cause to believe has violated section 43-30-10.
  2. A citation must be in writing and describe with particularity the nature of the violation. The citation must also inform the person of the provisions of subsection 5. A separate citation must be issued for each violation.
  3. If appropriate, the citation must contain an order of abatement fixing a reasonable time for abatement of the violation.
  4. The board may assess an administrative fee of:
    1. For the first violation, up to two hundred fifty dollars.
    2. For the second violation, up to five hundred dollars.
    3. For the third or subsequent violation, up to one thousand dollars.
  5. To appeal the finding of a violation, the person must request a hearing by written notice of appeal to the board within thirty days after the date of issuance of the citation.
  6. An appeal must be heard under the procedures contained in chapter 28-32, unless the citation is brought in district court.
  7. A citation does not preclude a civil injunction or the criminal prosecution and punishment of a violator.

Source:

S.L. 2005, ch. 368, § 2; 2021, ch. 319, § 3, effective July 1, 2021.

43-30-11. Renewal of licenses.

A license to provide private investigative or security services must be renewed on an annual basis ending on September thirtieth of each year. License fees must be prorated for the portion of each license period the license is in effect.

Source:

S.L. 1963, ch. 315, § 11; 1977, ch. 411, § 1; 1983, ch. 487, § 9; 2009, ch. 374, § 1.

43-30-12. Disciplinary action.

The board may refuse to renew, suspend, or revoke a license, or place on probationary status any licensee, or issue a letter of reprimand to any licensee, for any one or any combination of the following causes:

  1. Fraud in obtaining a license.
  2. Violation of this chapter or rules adopted which implement section 43-30-04.
  3. If the holder of any license or a member of any copartnership, an officer of any corporation, or a manager of any limited liability company has been adjudged guilty of the commission of an offense determined by the board to have a direct bearing upon a holder’s ability to serve the public as a private investigative or security agency, or if the board determines that, following conviction of any offense, the holder is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. Upon the disqualification or insolvency of the surety of the licenseholder.
  5. Any person licensed, certified, or registered by the board pursuant to this chapter who violates any statute or board regulation and who is not criminally prosecuted is subject to a monetary penalty, which may be assessed at a hearing under the procedures contained in chapter 28-32. If the board determines that a respondent is guilty of the violation complained of, the board shall determine the amount of the monetary penalty for the violation, which may not exceed two thousand five hundred dollars for each violation. The penalty may be sued for and recovered in the name of the board. The monetary penalty must be paid into the board’s general fund.

The board may impose a fee on any person subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, including the amount paid by the board for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses.

Source:

S.L. 1963, ch. 315, § 12; 1977, ch. 130, § 51; 1983, ch. 487, § 10; 1989, ch. 533, § 8; 1993, ch. 54, § 106; 1997, ch. 377, § 3; 2005, ch. 368, § 3.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Liability of one hiring private investigator or detective for tortious acts committed in course of investigation, 73 A.L.R.3d 1175.

Regulation of private detectives, private investigators, and security agencies, 86 A.L.R.3d 691.

43-30-13. Notice and hearing on license revocation.

The board may, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth facts which, if proven, would constitute a violation of this chapter or rules adopted by the board, investigate the actions of any person holding or claiming to hold a license. The board shall, before refusing to issue, suspending, revoking, or taking any other licensure action, notify in writing the applicant or holder of the license of any charges made and shall afford the accused person an opportunity to be heard in person or by counsel in reference thereto. The written notice may be served by personal delivery to the accused person, or by registered mail to the place of business specified by the accused person in the person’s last notification to the board. At the time and place fixed in the notice, the board shall proceed to hearing of the charges and both the accused person and the complainant must be accorded ample opportunity to present in person or by counsel such statements, testimony, evidence, and argument as may be pertinent to the charges or to any defense thereto. The board may continue the hearing from time to time.

Source:

S.L. 1963, ch. 315, § 13; 1989, ch. 533, § 9; 1997, ch. 377, § 4.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-30-14. Hearing powers.

The board may subpoena any person in this state and take testimony either orally or by deposition, or both, with the same fees and mileage and in the same manner as prescribed by law in judicial procedure in civil cases in courts of this state.

Source:

S.L. 1963, ch. 315, § 14; 1989, ch. 533, § 10.

43-30-15. Application of chapter 28-32.

Chapter 28-32 governs the procedures under this chapter. Any decision made by the board under section 43-30-12 is governed by chapter 28-32.

Source:

S.L. 1963, ch. 315, § 15; 1983, ch. 487, § 11; 1985, ch. 488, § 3; 1989, ch. 533, § 11.

43-30-16. Examination, license, and registration fees.

The board may establish by rule and charge the following fees:

  1. The fee to be paid by an applicant for an examination to determine the applicant’s fitness to receive a license as a private investigator or a license to provide private security services may not exceed one hundred dollars.
  2. The fee to be paid by an applicant for the initial issuance or the renewal of a license as a private investigator or a license to provide private security services may not exceed one hundred fifty dollars. A late fee not to exceed fifty dollars may be charged for each month the renewal fee is due and unpaid.
  3. The fee to be paid by an applicant to apply for a license to conduct a private security or detective agency may not exceed one hundred dollars.
  4. The fee for the issuance or the renewal of a license to conduct a private security or detective agency may not exceed three hundred dollars. A late fee not to exceed one hundred dollars may be charged for each month the renewal fee is due and unpaid.
  5. The one-time fee to be paid by an applicant for the issuance of a private security training certificate may not exceed twenty-five dollars.
  6. The annual fee to be paid by an applicant for the issuance of an armed certificate may not exceed thirty dollars. A late fee not to exceed ten dollars may be charged for each month the renewal fee is due and unpaid.
  7. The fee to be paid for the issuance of a duplicate license may not exceed twenty dollars.
  8. The initial registration fee to provide private investigative service or private security service may not exceed thirty dollars. The fee for the renewal of a registration to provide private investigative service or private security service may not exceed thirty dollars. A late fee not to exceed ten dollars may be charged for each month the renewal fee is due and unpaid.
  9. The initial application fee for a certified course instructor for an armed first responder training certification may not exceed four hundred dollars. A fee for renewal of a course instructor certification for an armed first responder program may not exceed three hundred dollars.

Source:

S.L. 1963, ch. 315, § 16; 1983, ch. 487, § 12; 1985, ch. 488, § 4; 1997, ch. 377, § 5; 1999, ch. 390, § 4; 2009, ch. 375, § 1; 2021, ch. 497, § 1, effective July 1, 2021; 2021, ch. 319, § 4, effective July 1, 2021; 2021, ch. 321, § 1, effective July 1, 2021.

Note.

Section 43-30-16 was amended 3 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 497, Session Laws 2021, House Bill 1463; Section 1 of Chapter 321, Session Laws 2021, Senate Bill 2096; and Section 4 of Chapter 319, Session Laws 2021, Senate Bill 2095.

CHAPTER 43-31 Detection of Deception Examiners

43-31-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Detection of deception examiner” or “examiner” means any person who uses any device or instrument to test or question individuals for the purpose of detecting deception.
  2. “Internship” means the study of polygraph examinations and of the administration of polygraph examinations by a trainee under the personal supervision and control of a licensed examiner in accordance with a course of study prescribed by the attorney general at the commencement of such internship.
  3. “Person” includes any natural person, partnership, association, corporation, limited liability company, or trust.

Source:

S.L. 1965, ch. 303, § 1; 1979, ch. 471, § 2; 1993, ch. 54, § 106.

Notes to Decisions

Inadmissibility.

Unless the parties stipulate to their admissibility, polygraph test results are inadmissible in criminal trials in this state, at least without evidence of the scientific reliability and acceptance of the results of polygraph examinations. City of Bismarck v. Berger, 465 N.W.2d 480, 1991 N.D. App. LEXIS 3 (N.D. Ct. App. 1991).

Collateral References.

Validity and construction of statutes licensing or otherwise regulating operators of polygraph or similar devices, 32 A.L.R.3d 1324.

Admissibility of lie detector test taken upon stipulation that the result will be admissible in evidence, 53 A.L.R.3d 1005.

Admissibility of voice stress evaluation test results or of statements made during test, 47 A.L.R.4th 1202.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 A.L.R.4th 576.

Propriety of conditioning probation on defendant’s submission to polygraph or other lie detector testing, 86 A.L.R.4th 709.

Law Reviews.

The Polygraph In 1995: Progress in Science and the Law, 71 N.D. L. Rev. 987 (1995).

43-31-02. Instruments to be used.

Every examiner shall use an instrument which records physiologic activity with four sensors: a blood pressure cuff, electrodermal sensors, and two respirator sensors, but such an instrument may record additional physiological changes pertinent to the detection of deception. An examiner shall, when requested by the person being examined, provide the results of the examination within a reasonable amount of time.

Source:

S.L. 1965, ch. 303, § 2; 2011, ch. 323, § 1.

43-31-03. Unlawful acts.

It is unlawful for any person to administer detection of deception examinations, or attempt to hold out as an examiner, without a license issued by the attorney general of the state.

Source:

S.L. 1965, ch. 303, § 3.

Collateral References.

Validity and construction of statutes licensing or otherwise regulating operators of polygraph or similar devices, 32 A.L.R.3d 1324.

Admissibility of lie detector test taken upon stipulation that the result will be admissible in evidence, 53 A.L.R.3d 1005.

Admissibility of voice stress evaluation test results or of statements made during test, 47 A.L.R.4th 1202.

43-31-04. Applications for licenses.

Applications for licenses must be made to the attorney general in writing on forms prescribed by the attorney general and must be accompanied by the required fee, which is not returnable. Any such application must require such information as in the judgment of the attorney general will enable the attorney general to pass on the qualifications of the applicant for a license.

Source:

S.L. 1965, ch. 303, § 4.

43-31-05. Renewal of licenses.

The license of an examiner which has not been revoked or is not suspended must be renewed annually upon payment of the required fee by the examiner.

Source:

S.L. 1965, ch. 303, § 5.

43-31-06. Consent for service of process.

Each nonresident applicant for an original license or a renewal license shall file an irrevocable consent that actions against the applicant may be filed in any appropriate court of any county of this state in which the plaintiff resides or in which some part of the transaction occurred out of which the alleged claim for relief arose and that process in any action may be served on the applicant by leaving two copies thereof with the attorney general. Such consent must stipulate and agree that such service of process is valid and binding for all purposes. The attorney general shall send forthwith one copy of the process to the applicant at the address shown on the records of the attorney general’s office by registered mail.

Source:

S.L. 1965, ch. 303, § 6; 1985, ch. 82, § 115.

43-31-07. Qualifications of applicant.

An individual is qualified to receive a license as an examiner if the applicant:

  1. Is at least twenty-one years of age.
  2. Within the last five years has not pled guilty or nolo contendere to, been found guilty of, or been released from incarceration or probation for, violation of a law of the United States which is a felony offense or any state or local ordinance that is a felony offense.
  3. Following conviction or release from incarceration or probation, is determined, pursuant to section 12.1-33-02.1, to be rehabilitated.
  4. Has not been released or discharged under other than honorable conditions from any of the armed services of the United States.
  5. Has satisfactorily completed a polygraph examiners course certified by either the American polygraph association or the American association of police polygraphists, or approved by the attorney general.
  6. Has satisfactorily completed not less than six months of internship training under the supervision of a licensed polygraph examiner.

Source:

S.L. 1965, ch. 303, § 7; 1973, ch. 120, § 53; 1975, ch. 412, § 1; 1977, ch. 130, § 52; 1979, ch. 471, § 3; 1981, ch. 435, § 18; 1991, ch. 54, § 19; 2011, ch. 323, § 2; 2021, ch. 322, § 1, effective July 1, 2021.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-31-07.1. Internship license. [Repealed]

Source:

S.L. 1979, ch. 471, § 1; repealed by 2021, ch. 322, § 5, effective July 1, 2021.

43-31-08. Reinstatement of license.

An examiner whose license has expired may be reinstated at any time within one year after the expiration thereof, by making a renewal application therefor and by paying the renewal license fee.

Source:

S.L. 1965, ch. 303, § 8; 1979, ch. 472, § 1.

43-31-09. Contents of license — Posting.

A license must be prominently displayed at the principal place of business of every examiner or may be in the possession of the examiner when conducting examinations in a location other than the examiner’s principal place of business. Each license must be signed by the attorney general and must be issued under the seal of the attorney general’s office.

Source:

S.L. 1965, ch. 303, § 9; 2021, ch. 322, § 2, effective July 1, 2021.

43-31-10. Revocation or suspension.

The attorney general may refuse to issue or renew or may suspend or revoke a license for any one of the following grounds:

  1. Material misstatement in the application for original license or in the application for any renewal license under this chapter.
  2. Willful disregard or violation of this chapter or of any regulation or rule issued pursuant thereto.
  3. Conviction of an offense determined by the attorney general to have a direct bearing upon a person’s ability to serve the public as an examiner, or when the attorney general determines, following a person’s conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. Making any willful misrepresentation or false promises or causing to be printed any false or misleading advertisement for the purpose of directly or indirectly obtaining business or trainees.
  5. Allowing one’s license under this chapter to be used by an unlicensed person in violation of the provisions of this chapter.
  6. Willfully aiding or abetting another in the violation of this chapter or of any rule issued by the attorney general pursuant thereto.
  7. The licenseholder has been adjudged mentally ill, mentally deficient, or in need of mental treatment.
  8. Failing, within a reasonable time, to provide information requested by the attorney general as the result of a formal or informal complaint to the attorney general, which would indicate a violation of this chapter.

Source:

S.L. 1965, ch. 303, § 10; 1977, ch. 130, § 53; 2021, ch. 322, § 3, effective July 1, 2021.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Validity and construction of statutes licensing or otherwise regulating operators of polygraph or similar devices, 32 A.L.R.3d 1324.

43-31-11. Notice and hearing on license revocation.

The attorney general may, upon the attorney general’s own motion, and shall, upon the verified complaint in writing of any person setting forth facts which, if proven, would constitute grounds for refusal, suspension, or revocation, as herein set forth, investigate the actions of any person holding or claiming to hold a license. The attorney general shall, before refusing to issue, suspending, or revoking any license, at least ten days prior to the date set for the hearing notify in writing the applicant or holder of such license of any charges made and shall afford such accused person an opportunity to be heard in person or by counsel in reference thereto. Such written notice may be served by delivery of the same personally to the accused person, or by mailing the same by registered mail to the place of business last theretofore specified by the accused person in the person’s last notification to the attorney general. At the time and place fixed in the notice, the attorney general shall proceed to hearing of the charges and both the accused person and the complainant must be accorded ample opportunity to present in person or by counsel such statements, testimony, evidence, and argument as may be pertinent to the charges or to any defense thereto. The attorney general may continue such hearing from time to time.

Source:

S.L. 1965, ch. 303, § 11.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

“Registered mail” defined to include certified mail, see N.D.C.C. § 1-02-36.

43-31-12. Appeal from decision.

The district court of the county wherein the accused person resides has power to review any order of revocation or suspension and all questions of law and fact thereon provided application therefor is made by either party within thirty days from the date of service of such order.

Source:

S.L. 1965, ch. 303, § 12.

43-31-13. Attorney general may issue regulations.

The attorney general may issue regulations, consistent with the provisions of this chapter, for the administration and enforcement thereof and may prescribe forms which shall be issued in connection therewith.

Source:

S.L. 1965, ch. 303, § 13.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-31-14. License fees.

  1. The annual license fee is thirty-five dollars, and is due and payable on or before October first of each year. A reinstatement fee of fifty dollars is required in addition to the annual license fee for each license renewal applied for after October first.
  2. The fee to be paid for the issuance of a duplicate license is five dollars.
  3. The fee to be paid for an internship license, and for the extension or renewal thereof, is twenty-five dollars.

Source:

S.L. 1965, ch. 303, § 14; 1977, ch. 412, § 1; 1979, ch. 471, § 4; 1979, ch. 472, § 2; 1987, ch. 532, § 1; 1991, ch. 78, § 2; 2021, ch. 322, § 4, effective July 1, 2021.

43-31-15. Exemptions.

The provisions of this chapter do not apply to any examiner in the exclusive employment of the United States of America or any department, bureau, or agency thereof.

Source:

S.L. 1965, ch. 303, § 15; 1975, ch. 412, § 2.

43-31-16. Exemption from testing requirements. [Repealed]

Source:

S.L. 1965, ch. 303, § 16; 2001, ch. 388, § 1; 2011, ch. 323, § 3; repealed by 2021, ch. 322, § 5, effective July 1, 2021.

43-31-17. Violation — Penalty.

Any person who violates any provision of this chapter or any person who falsely states or represents that that person has been or is an examiner or trainee is guilty of a class B misdemeanor.

Source:

S.L. 1965, ch. 303, § 17; 1975, ch. 106, § 504.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-32 Psychologists

43-32-01. Definitions.

  1. “Board” means the North Dakota state board of psychologist examiners.
  2. “Industrial-organizational psychologist” means an individual who is licensed under this chapter to engage in the practice of industrial-organizational psychology.
  3. “Industrial-organizational psychology” means the provision of psychological research services or consultation services to a group or an organization. The term does not include the delivery or supervision of services to individuals who are themselves, rather than the group or organization, the intended beneficiaries of the services, regardless of the source or extent of payment for services rendered.
  4. “Industrial-organizational psychology resident” means an individual who has met the requirement of subdivision b of subsection 2 of section 43-32-20, is involved in supervised employment in industrial-organizational psychology, and has registered with the board.
  5. “Licensee” means an industrial-organizational psychologist or a psychologist.
  6. “Practice of psychology” means the observation, description, evaluation, interpretation, or modification of human behavior by the application of psychological principles, methods, and procedures for the purpose of preventing or eliminating symptomatic, maladaptive, or undesired behavior and enhancing interpersonal relationships, work and life adjustment, personal effectiveness, behavioral health, and mental health. The term includes psychological testing and the evaluation or assessment of personal characteristics, such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning; counseling, psychotherapy, biofeedback, behavior analysis and therapy, clinical applications of hypnosis, and other therapeutic techniques based on psychological principles; diagnosis and treatment of mental and emotional disorder or disability, compulsive disorders, disorders of habit or conduct as well as of the psychological aspects of physical illness, accident, injury, or disability; and psychoeducational evaluation, therapy, remediation, and consultation. The term includes providing psychological services to individuals, families, groups, organizations, institutions, and the public regardless of whether payment is received for services rendered. The term includes supervising others who are engaged in the practice of psychology.
  7. “Psychologist” means an individual who is licensed under this chapter in the practice of psychology.
  8. “Psychology resident” means an individual who is registered by the board and is actively engaged in supervised practice.
  9. “School or college” means any university or other institution of higher learning which is accredited by a regional accrediting association, offering a full-time graduate course of study in industrial-organizational psychology or psychology as appropriate.

Source:

S.L. 1967, ch. 357, § 1; 1993, ch. 436, § 1; 1997, ch. 378, § 1; 2005, ch. 369, § 1; 2009, ch. 376, § 1; 2011, ch. 324, § 1; 2017, ch. 301, § 1, effective July 1, 2017; 2019, ch. 364, § 1, effective January 1, 2020.

Cross-References.

Child abuse or neglect, duty to report, see N.D.C.C. ch. 50-25.1.

Privileged communications between psychotherapist and patient, see N.D.R.Ev. 503.

Collateral References.

Validity of legislation regulating, licensing or providing for certification of psychologists, 81 A.L.R.2d 791.

Privilege, in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient, 44 A.L.R.3d 24.

43-32-02. State board of psychologist examiners — How appointed — Qualifications.

The governor shall appoint a state board of psychologist examiners consisting of seven members, all of whom are residents of the state. One board member must be designated a public member who is a resident of this state, is at least twenty-one years of age, and is not affiliated with any group or profession that provides or regulates health care in any form. Of the remaining six board members, at least one member must be engaged primarily in providing service in psychology, and at least one member must be engaged primarily in teaching, training, or research in psychology. Except the public member, each member must be licensed under this chapter for at least five years.

Source:

S.L. 1967, ch. 357, § 2; 1981, ch. 435, § 19; 1997, ch. 378, § 2; 2015, ch. 304, § 1, effective August 1, 2015; 2017, ch. 301, § 2, effective July 1, 2017; 2019, ch. 364, § 2, effective January 1, 2020.

43-32-03. Tenure of members — Vacancies and oath of office.

The term of office of each member of the board is three years and until a successor is appointed and qualified. The governor shall fill all vacancies by appointment. In case of a vacancy before the expiration of a term, the appointment must be for the remainder of the term only. An individual appointed to the board qualifies by taking the oath required of civil officers.

Source:

S.L. 1967, ch. 357, § 3; 1997, ch. 378, § 3; 2005, ch. 369, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-32-04. Removal of members.

The governor may remove any member of the board for unprofessional conduct, incompetency, or neglect of duty after giving such member a written statement of the reasons for removal and after such member has had an opportunity to be heard thereon.

Source:

S.L. 1967, ch. 357, § 4.

Cross-References.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

43-32-05. Compensation of members — Expenses of board and members.

Each member of the board serves without compensation, but is entitled to receive reimbursement for board expenses, mileage, and travel expenses while engaged in the performance of board duties as provided in section 54-06-09. The secretary of the board is entitled to receive salary or other compensation and allowance for clerical and other expenses of the board, as the board determines.

Source:

S.L. 1967, ch. 357, § 5; 1997, ch. 378, § 4; 2017, ch. 301, § 3, effective July 1, 2017.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-32-06. Officers of the board.

The board shall elect annually a president and vice president from its own number and a secretary who need not be a member of the board.

Source:

S.L. 1967, ch. 357, § 6.

43-32-06.1. Authority to appoint or employ.

The board may appoint, contract with, or employ persons to assist the board in carrying out its duties under this chapter.

Source:

S.L. 1997, ch. 378, § 5; 2017, ch. 301, § 4, effective July 1, 2017.

43-32-07. Meetings of board.

The board shall hold at least one regular meeting each year. Additional meetings may be held upon call of the president or at the written request of the governor or of any two members of the board. The meetings must be held at such places as the board may designate.

Source:

S.L. 1967, ch. 357, § 7; 2005, ch. 369, § 3; 2017, ch. 301, § 5, effective July 1, 2017.

43-32-08. Rules.

The board may adopt rules as necessary to enable the board to carry into effect the provisions of this chapter. The rules may include a code of ethics for licensees. The board shall adopt rules defining what programs of study are substantially psychological in nature and what educational programs are acceptable for the licensing of psychologists and industrial-organizational psychologists.

Source:

S.L. 1967, ch. 357, § 8; 2005, ch. 369, § 4; 2011, ch. 324, § 2; 2015, ch. 304, § 2, effective August 1, 2015; 2019, ch. 364, § 3, effective January 1, 2020.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-32-08.1. Continuing education requirements.

The board shall adopt rules establishing requirements for the continuing education of all licensees, psychology residents, and industrial-organizational psychology residents. The board may refuse to renew, suspend, revoke, or place on probationary status any license issued under this chapter if the licensee fails to meet applicable continuing education requirements. Sponsors of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source:

S.L. 1991, ch. 473, § 1; 1997, ch. 378, § 6; 2005, ch. 369, § 5; 2009, ch. 376, § 2; 2011, ch. 324, § 3; 2017, ch. 301, § 6, effective July 1, 2017; 2019, ch. 364, § 4, effective January 1, 2020.

43-32-08.2. Continuing education requirements — Renewal.

Absent a showing of good cause, the board may not renew a license issued under this chapter without proof the continuing education requirements under section 43-32-08.1 have been met. An individual whose license is not renewed because of failure to meet the continuing education requirements must be reinstated and the license renewed if, within one year from the date of nonrenewal, the individual demonstrates to the secretary of the board the continuing education requirements have been satisfied, pays the renewal fee, and pays a late fee to be determined by rule of the board.

Source:

S.L. 1997, ch. 378, § 10; 2005, ch. 369, § 6; 2011, ch. 324, § 4; 2019, ch. 364, § 5, effective January 1, 2020.

43-32-09. Examination of qualifications of applicants.

The board shall examine for, deny, approve, revoke, suspend, and renew the licensing of applicants as provided under this chapter.

Source:

S.L. 1967, ch. 357, § 9; 2011, ch. 324, § 5; 2019, ch. 364, § 6, effective January 1, 2020.

Collateral References.

Validity of legislation regulating, licensing or providing for certification of psychologists, 81 A.L.R.2d 791.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

43-32-10. Power of board to administer oaths — Conduct hearings — Summon witnesses — Take testimony.

The members of the board and the secretary may administer oaths. The board may summon witnesses as provided in chapter 28-32 and take testimony in all matters relating to its duties, including the enforcement of the provisions and purposes of this chapter and the rules adopted by the board.

Source:

S.L. 1967, ch. 357, § 10; 1989, ch. 69, § 52.

43-32-11. Annual reports.

Each year, the board may transmit to the governor, with a copy thereof to the secretary of state and to the North Dakota psychological association, a full report of all activities under this chapter, together with a report of all receipts and disbursements.

Source:

S.L. 1967, ch. 357, § 11; 2003, ch. 459, § 4.

43-32-12. Application and fee for licensure.

The board shall adopt rules establishing the amount of the application fee for licensure. A fee is not refundable.

Source:

S.L. 1967, ch. 357, § 12; 2005, ch. 369, § 7; 2011, ch. 324, § 6; 2015, ch. 304, § 3, effective August 1, 2015; 2017, ch. 301, § 7, effective July 1, 2017; 2019, ch. 364, § 7, effective January 1, 2020.

43-32-13. Annual license fee.

Annually, the board shall mail or transmit by electronic mail a renewal notice and application to each licensee at the address or electronic mail address on file with the board. Before November fifteenth of each year, every licensee shall apply for renewal on a renewal application form provided by the board and pay to the secretary of the board an annual fee determined by the board by rule. Upon confirmation by the board the renewal application is complete, the criteria for renewal have been met, and the secretary of the board has received payment of the annual fee, the secretary shall issue the licensee a certificate of annual renewal, which commences on January first. An individual may not hold out as an industrial-organizational psychologist or a psychologist until the annual fee is paid. The board may deny renewal of the license of an individual who violates this section. Annually, the board shall mail or electronically mail a renewal notice to each licensee at the address or electronic mail address on file with the board.

Source:

S.L. 1967, ch. 357, § 13; 1997, ch. 378, § 8; 1999, ch. 391, § 1; 2005, ch. 369, § 8; 2009, ch. 376, § 3; 2011, ch. 324, § 7; 2015, ch. 304, § 4, effective August 1, 2015; 2017, ch. 301, § 8, effective July 1, 2017; 2019, ch. 364, § 8, effective January 1, 2020.

43-32-14. Payment of delinquent annual fee — Reinstatement.

If an individual’s license issued under this chapter expires for failure to pay the annual fee, the board shall reinstate that individual and renew the license if, within one year from the date of expiration, the individual pays to the secretary of the board the amount of the annual fees in default and a late fee in the amount established by the board by rule and demonstrates all continuing education requirements have been met or the board has granted an extension of the period in which to meet the continuing education requirements.

Source:

S.L. 1967, ch. 357, § 14; 1997, ch. 378, § 9; 2005, ch. 369, § 9; 2011, ch. 324, § 8; 2015, ch. 304, § 5, effective August 1, 2015; 2017, ch. 301, § 9, effective July 1, 2017; 2019, ch. 364, § 9, effective January 1, 2020.

43-32-15. Deposit and disbursement of fees. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-32-16. Board to keep records.

  1. The board shall keep a record of its proceedings and a register of all applicants for licensing which must show:
    1. The name, date of birth, and residence of each applicant.
    2. The date of each applicant’s application.
    3. The place of business of each applicant.
    4. A summary of the educational and other qualifications of each applicant.
    5. Whether an examination was required of an applicant.
    6. Whether a license was granted to an applicant.
    7. The date of the action of the board.
    8. Any information the board determines necessary or advisable in aid of the requirements of this subsection.
  2. Except as otherwise provided by law, the records of the board are public records and evidence of the proceedings of the board, and a transcript of board proceedings, duly certified by the secretary of the board is admissible in evidence with the same effect as if the original were produced.

Source:

S.L. 1967, ch. 357, § 16; 1997, ch. 378, § 11; 2011, ch. 324, § 9; 2017, ch. 301, § 10, effective July 1, 2017; 2019, ch. 364, § 10, effective January 1, 2020.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-32-17. License required for practice — Titles.

  1. Except as otherwise provided under this chapter, a person may not engage in the practice of psychology unless that person is licensed as a psychologist or is registered as a psychology resident under this chapter. Except as otherwise provided by this chapter, a person may not engage in the practice of industrial-organizational psychology unless that person is licensed as a psychologist or industrial-organizational psychologist or is registered as a psychology resident or industrial-organizational psychology resident under this chapter.
  2. A person may not use the title “psychologist” or similar title unless that person is licensed as a psychologist. A person may not use the titles “industrial psychologist”, “organizational psychologist”, or “industrial-organizational psychologist” unless that person is licensed as a psychologist or industrial-organizational psychologist.
  3. A person may not use the title “psychology resident” or similar title unless that person is registered as a psychology resident. A person may not use the titles “industrial psychology resident”, “organizational psychology resident”, or “industrial-organizational psychology resident” unless that person is registered as a psychology resident or industrial-organizational psychology resident.

Source:

S.L. 1967, ch. 357, § 17; 1993, ch. 436, § 2; 2005, ch. 369, § 10; 2009, ch. 376, § 4; 2015, ch. 304, § 6, effective August 1, 2015; 2017, ch. 301, § 11, effective July 1, 2017; 2019, ch. 364, § 11, effective January 1, 2020.

Collateral References.

Validity of legislation regulating, licensing or providing for certification of psychologists, 81 A.L.R.2d 791.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

43-32-18. Licensing of psychologists without examination — Qualifications of applicants. [Repealed]

Repealed by S.L. 1997, ch. 378, § 20.

43-32-19. Licensing applicants from other states. [Repealed]

Repealed by S.L. 2009, ch. 376, § 11.

43-32-19.1. Expedited licensure — Licensing applicants licensed or registered in other jurisdictions.

  1. The board may grant a license to an applicant who is an individual licensed, certified, or registered in another jurisdiction and who files a completed application on a form and in a manner the board prescribed, submits the required fee, and submits documentation:
    1. Confirming graduation from an accredited program in the degree of licensure for which the individual is applying in this state;
    2. Confirming completion of a national examination required by the board related to competence in psychology;
    3. Identifying all professional licenses, certifications, or registrations previously obtained by the applicant in any jurisdiction;
    4. Explaining any professional or personal conduct that reasonably may be interpreted as indicating an inability to adhere to this chapter, including the code of ethical conduct adopted by the board; and
    5. Providing the board with a release by which the board may obtain from the applicant’s current jurisdiction, confirmation of the educational degree the applicant’s licensure or registration required, documentation of any disciplinary action related to the applicant’s license or registration, and an explanation of all levels in the applicant’s profession the current jurisdiction licenses or registers.
  2. As a condition to qualify for licensure under subsection 1, the board may require the applicant pass an examination on the ethics, laws, and rules regulating the practice of psychology or industrial-organizational psychology, as appropriate to the licensure sought by the applicant.
  3. Notwithstanding any contrary provision of this chapter, the board may issue a license as authorized under chapter 43-51.
  4. The board may grant a provisional license to an expedited licensure applicant while the application is pending. The board may deny or place restrictions on a provisional license under this subsection if in another jurisdiction, within the previous five years, the applicant had a disciplinary action against the applicant’s license or registration.
  5. Except as otherwise provided under this chapter, and in accordance with rules adopted by the board, the board may issue a limited practice certificate to an applicant who is licensed or registered in another jurisdiction to practice psychology or industrial-organizational psychology. A limited practice certificate issued under this subsection authorizes the practice of psychology or industrial-organizational psychology in this state for no more than thirty days in a calendar year.

Source:

S.L. 2009, ch. 376, § 5; 2011, ch. 324, § 10; 2015, ch. 304, § 7, effective August 1, 2015; 2017, ch. 301, § 12, effective July 1, 2017; 2019, ch. 364, § 12, effective January 1, 2020.

43-32-20. Licensing — Written and oral examination — Qualifications of applicants.

The board may issue a license to each applicant who files a completed application upon a form and in a manner the board prescribes, submits the required fee, and meets the requirements of subsection 1 or 2.

  1. An applicant for licensure as a psychologist shall demonstrate all of the following:
    1. The applicant will adhere to the code of ethical conduct adopted by the board by rule.
    2. The applicant has received, from a school or college, a doctorate degree in a program that is accredited as a doctoral program in psychology by an accrediting body approved by the board by rule.
    3. The applicant has passed the examinations, written or oral, or both, as the board determines necessary.
    4. The applicant has completed at least two full years of supervised professional experience, one year of which must be an internship program, and one year of which may be postdoctoral. Both years of experience must comply with the board’s rules.
  2. An applicant for licensure as an industrial-organizational psychologist shall demonstrate all of the following:
    1. The applicant will adhere to the code of ethical conduct adopted by the board by rule.
    2. The applicant has received, from a school or college, a doctorate degree in a program of studies accredited by an accrediting body approved by the board by rule.
    3. The applicant has passed the examinations, written or oral, or both, as the board determines necessary.
    4. The applicant has completed the professional experience requirements established by the board. The requirements may not exceed the professional experience requirements for psychologists. If the professional experience requirements include a supervised experience requirement:
      1. The board must allow an applicant to submit to the board a personalized plan for supervised experience which may include distance-supervision by a qualified industrial-organizational psychologist.
      2. The board may adopt rules to establish who is qualified to perform supervision, supervision requirements, and reporting.

Source:

S.L. 1967, ch. 357, § 20; 1981, ch. 435, § 21; 1997, ch. 378, § 13; 2005, ch. 369, § 12; 2009, ch. 376, § 6; 2015, ch. 308, § 8, effective August 1, 2015; 2017, ch. 301, § 13, effective July 1, 2017; 2019, ch. 364, § 13, effective January 1, 2020.

43-32-20.1. Postdoctoral supervised psychological employment.

  1. This section applies to postdoctoral supervised employment in the practice of psychology and industrial-organizational psychology.
  2. Before starting supervised employment, a psychologist with at least three years of post-license practice experience must be identified as the primary supervisor. The primary supervisor must have a competency in supervision in professional psychology in the general area of practice being supervised.
  3. Supervision must occur weekly and consist of at least one hundred hours of direct supervision, either face-to-face or through distance communications. At least fifty of the hours of supervision must be with the primary supervisor. Additional hours of supervision may be with other professionals designated by the supervisor and competent in the area of practice being supervised. The board may adopt rules to prorate supervision for individuals preparing for licensure on a part-time basis.
    1. An applicant seeking registration as a resident shall submit the following to the board:
      1. A supervision relationship form;
      2. An application initiation form and fee; and
      3. A completed online licensure application.
    2. The board shall register an applicant as a resident if the documentation submitted by the applicant confirms the applicant meets the standards required by law.
    3. The board shall adopt rules setting forth the requirements necessary to maintain a residency, including rules related to the supervision requirements for residents.
  4. The board may adopt rules regarding postdoctoral psychology and industrial-organizational psychology supervision requirements and reporting.

Source:

S.L. 1997, ch. 378, § 14; 2005, ch. 369, § 13; 2009, ch. 376, § 7; 2015, ch. 304, § 9, effective August 1, 2015; 2017, ch. 301, § 14, effective July 1, 2017.

43-32-21. Consideration of application and notice to applicant.

Upon investigation of the application and other evidence submitted, the board shall notify each applicant that the application and evidence submitted for licensing is satisfactory and accepted, or unsatisfactory and rejected. If rejected, the notice must state the reasons for rejection and explain the right to a hearing under chapter 28-32, if a hearing is requested within thirty days.

Source:

S.L. 1967, ch. 357, § 21; 1997, ch. 378, § 15; 2015, ch. 304, § 10, effective August 1, 2015.

43-32-22. Time and place of examination.

The time and place of examination must be designated by the board and notice thereof must be given to each applicant. Such examinations must be given annually and at such other times as in the opinion of the board the number of applicants warrants.

Source:

S.L. 1967, ch. 357, § 22.

43-32-23. Scope and grading of examination.

The board shall determine the subject and scope of specialized psychological areas and techniques for examination. Written examinations may be supplemented by oral examinations as the board may determine necessary. The board shall determine an acceptable level of performance for each examination and a majority decision of the board is required for the issuing of a license.

Source:

S.L. 1967, ch. 357, § 23; 2005, ch. 369, § 14.

43-32-24. Notice to applicant of examination results and right to re-examination.

The board shall inform the applicant of the results of the examination. An applicant who fails the examination may be re-examined at a subsequent examination upon again paying the required examination fee.

Source:

S.L. 1967, ch. 357, § 24; 2017, ch. 301, § 15, effective July 1, 2017.

43-32-25. Retention of examination records.

The board shall keep the written examination score report, an accurate recording of the questions and answers relating to the oral examinations, and the grade assigned to each answer thereof as a part of the board’s records for at least two years following the date of the examination. In addition, the board shall keep a permanent record of all written examination score reports.

Source:

S.L. 1967, ch. 357, § 25; 2005, ch. 369, § 15.

43-32-26. Issuance and display of license.

The board is the sole agency empowered to examine competence in the practice of psychology. A certificate of license or registration issued by the board must show the full name of the licensee, have a serial number, be signed by the president of the board, and be attested by the secretary. The license issued by the board under this chapter must be prominently displayed at the principal place of business at which the licensee practices.

Source:

S.L. 1967, ch. 357, § 26; 2005, ch. 369, § 16; 2015, ch. 304, § 11, effective August 1, 2015; 2017, ch. 301, § 16, effective July 1, 2017.

43-32-27. Denial — Revocation or suspension of license — Grounds.

  1. The board, after notice, hearing, and an affirmative vote of at least a majority of board members, may withhold, deny, revoke, or suspend any license issued or applied for under this chapter and may otherwise discipline a licensee or an applicant upon proof the applicant or licensee:
    1. Has been convicted of an offense determined by the board to have a direct bearing upon an individual’s ability to serve the public in the practice of psychology, or if the board finds, after the conviction of any offense, that an individual is not sufficiently rehabilitated under section 12.1-33-02.1.
    2. Is unable to practice psychology with reasonable skill and safety to clients or patients by reason of illness, inebriation, misuse of drugs, narcotics, alcohol, chemicals, or any other substance, or as a result of any mental or physical condition.
    3. Has impersonated another individual holding a license issued under this chapter or allowed another person to use the licensee’s license.
    4. Has used fraud or deception in applying for a license or in taking an examination under this chapter.
    5. Has allowed the licensee’s name or license issued under this chapter to be used in connection with any person who performs psychological services outside of the area of that person’s training, experience, or competence.
    6. Is legally adjudicated insane or mentally incompetent. The record of the adjudication is conclusive evidence of that fact.
    7. Has engaged in any form of unethical conduct as defined in the code of ethical conduct adopted by the board by rule.
    8. Has become grossly negligent in the practice of psychology.
    9. Has willfully or negligently violated this chapter.
    10. Has engaged in an act in violation of rules adopted by the board.
    11. Has had a license revoked or suspended or was disciplined in another jurisdiction.
  2. The board shall state in writing the board’s reason for denying a license.
  3. The board may assess costs incurred by the board related to investigations and disciplinary actions. By rule, the board may set fees or fines, not to exceed five hundred dollars, for minor infractions of this chapter.
  4. An individual whose license has been revoked under this section may not reapply for licensure for at least two years after the date of revocation.
  5. Other than the term “in good standing”, by rule, the board shall define terms related to license status, such as “revoked”, “suspended”, “inactive”, and “probationary”.

Source:

S.L. 1967, ch. 357, § 27; 1977, ch. 130, § 54; 1997, ch. 378, § 16; 2005, ch. 369, § 17; 2009, ch. 376, § 8; 2015, ch. 304, § 12, effective August 1, 2015; 2017, ch. 301, § 17, effective July 1, 2017; 2019, ch. 364, § 14, effective January 1, 2020.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Nonpayment of annual license fee as ground for revocation, reinstatement, see N.D.C.C. §§ 43-32-13, 43-32-14.

Collateral References.

Validity of legislation regulating, licensing or providing for certification of psychologists, 81 A.L.R.2d 791.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

Law Reviews.

Implied Waiver of Physician and Psychotherapist-Patient Privilege in North Dakota Medical Malpractice and Personal Injury Litigation, 83 N.D. L. Rev. 855 (2007).

43-32-27.1. Complaints — Investigations.

  1. A person aggrieved by the actions of a licensee or psychology resident may file a written statement with the board citing the specific allegations of misconduct. The board shall notify the licensee or psychology resident of the allegation and request a written response. The board may establish procedural exceptions for processing multiple allegations from the same person.
  2. The board shall determine if the information in an allegation warrants investigation as a complaint, without requiring the source of the information to be made a matter of public record, if the board concludes that good cause exists for preserving the confidentiality of the source.
  3. A licensee or psychology resident who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any reasonable question raised by or on behalf of the board relating to the subject of the investigation and providing copies of patient or client records if reasonably requested by the board and accompanied by the appropriate release.
  4. In order to pursue an investigation, the board may subpoena and examine witnesses and records, including patient and client records, and may copy, photograph, or take samples of the records. The board may require the licensee or psychology resident to give statements under oath, to submit to a physical or psychological examination, or both, by a physician or other qualified evaluation professional selected by the board, if requiring an examination is in the best interest of the public. The patient and client records released to the board are not public records. The board may adopt rules to assign, define duties, and compensate an investigator to assist the board to process a complaint.
  5. Unless a patient or client release is on file allowing the release of information at the public hearing, patient and client records acquired by the board in the board’s investigation are confidential and closed to the public. All board meetings at which patient or client testimony or records are taken or reviewed are confidential and closed to the public. If patient or client testimony or records are not taken or reviewed, the remainder of the meeting is an open meeting unless a specific exemption is otherwise applicable.

Source:

S.L. 1997, ch. 378, § 7; 2005, ch. 369, § 18; 2009, ch. 376, § 9; 2015, ch. 304, § 13, effective August 1, 2015; 2017, ch. 301, § 18, effective July 1, 2017; 2019, ch. 364, § 15, effective January 1, 2020.

43-32-28. Notice — Hearing — Findings of fact and order. [Repealed]

Repealed by S.L. 1997, ch. 378, § 20.

43-32-28.1. Hearing.

All hearings must be conducted pursuant to chapter 28-32. For purposes of a hearing, section 28-32-21 applies only to the licensee or applicant.

Source:

S.L. 1997, ch. 378, § 17; 2001, ch. 293, § 23.

43-32-29. Appeal from decision of board.

An appeal from the final decision of the board in any matter covered by this chapter may be taken to the Burleigh County district court or the aggrieved party’s county of residence in accordance with chapter 28-32.

Source:

S.L. 1967, ch. 357, § 29; 1997, ch. 378, § 18.

43-32-30. Persons exempt from this chapter.

This chapter does not apply to:

  1. A student or intern pursuing a course of study in psychology or industrial-organizational psychology at a school or college, if the activities and services are a part of the individual’s supervised course of study and are under the supervision of a licensed psychologist who meets the required supervision and continuing education requirements and demonstrates competency in the area of the student’s or intern’s practice or industrial-organizational psychologist. The student or intern may not use the title “psychologist” or “industrial-organizational psychologist”. The student or intern status and the supervisor must be clearly stated.
  2. A lecturer, from any school or college, who uses an academic or research title when lecturing to institutions or organizations. However, the lecturer may not engage in the practice of psychology or industrial-organizational psychology unless the lecturer is licensed or registered under this chapter.
  3. An individual employed by a public school if that individual’s activities and services are restricted to the practice of psychology in the district or service unit of employment. This exemption applies only if the individual has received a master’s degree in school psychology from an accredited graduate training program. Standards must be established by mutual consent of the board and the education standards and practices board.
  4. An individual certified, licensed, or registered in this state in another health care profession, or as a member of the clergy functioning in a ministerial capacity, whose scope of practice is consistent with the accepted standards of that individual’s profession. An individual claiming an exemption under this subsection may not represent to be rendering psychological services.
  5. An individual employed by an agency, a nonprofit corporation, or an institution if that individual is currently exempt from licensure. An individual exempt under this subsection continues to be exempt if the individual continues employment in the same position with the agency, nonprofit corporation, or institution that applied for and received the exemption.

Source:

S.L. 1967, ch. 357, § 30; 1979, ch. 473, § 1; 1993, ch. 436, § 3; 1997, ch. 378, § 19; 1999, ch. 391, § 2; 2005, ch. 369, § 19; 2009, ch. 376, § 10; 2011, ch. 324, § 11; 2015, ch. 304, § 14, effective August 1, 2015; 2017, ch. 301, § 19, effective July 1, 2017; 2019, ch. 364, § 16, effective January 1, 2020.

Collateral References.

Single or isolated transaction as falling within provisions of licensing requirements, 93 A.L.R.2d 90, 129.

43-32-31. Violation — Penalty — Injunction.

Any person who violates any of the provisions of this chapter is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of injunction is available to restrain and enjoin violations of any provisions of this chapter without proof of actual damages sustained by any person.

Source:

S.L. 1967, ch. 357, § 31; 1975, ch. 106, § 505.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-32-32. Drugs — Medicine.

This chapter may not be construed as permitting a licensee to administer or prescribe drugs, or in any manner engage in the practice of medicine as defined by the laws of this state.

Source:

S.L. 1967, ch. 357, § 32; 2005, ch. 369, § 20.

Cross-References.

“Practice of medicine” defined, see N.D.C.C. § 43-17-01.

43-32-33. Applied behavior analysis — Licensure or registration required — Titles. [Repealed]

Source:

S.L. 2011, ch. 324, § 12; repealed by 2017, ch. 301, § 20, effective July 1, 2017.

43-32-34. Applied behavior analysis — Renewal — Fees. [Repealed]

Source:

S.L. 2011, ch. 324, § 13; 2015, ch. 304, § 15, effective August 1, 2015; repealed by 2017, ch. 301, § 20, effective July 1, 2017.

CHAPTER 43-33 Hearing Aid Dealers

43-33-01. Definitions.

As used in this chapter, unless the context requires otherwise:

  1. “Board” means the board of hearing aid specialists.
  2. “Hearing aid” or “hearing instrument” means any wearable instrument or device designed for or offered for the purpose of aiding or compensating for impaired human hearing and any parts, attachments, or accessories including earmold, but excluding batteries, cords, and earmold tubing.
  3. “License” means a license issued under this chapter to a hearing aid specialist.
  4. “Licensee” means a hearing aid specialist licensed under this chapter.
  5. “Practice of fitting and dispensing hearing instruments” means the measurement of human hearing to determine hearing loss by means of an audiometer or by any means solely for the purpose of making selections, adaptations, repairs, or sale of hearing instruments. The term also includes the making of impressions for earmolds. A licensee, at the request of a physician or member of related professions, may make audiograms for the professional’s use in consultation with the hard-of-hearing.
  6. “Sell” or “sale” includes a transfer of title or of the right to use by lease, bailment, or any other contract. This excludes wholesale to distributors or dispensers.
  7. “Trainee permit” means a temporary permit issued while an applicant is in training to become a licensee.

Source:

S.L. 1969, ch. 397, § 1; 1971, ch. 444, § 1; 1991, ch. 474, § 1; 2003, ch. 372, § 1.

Cross-References.

Audiologists, see N.D.C.C. ch. 43-37.

Otologists and other medical doctors, see N.D.C.C. ch. 43-17.

43-33-02. License required to sell or fit hearing instruments.

  1. A person may not engage in the sale of or practice of fitting hearing instruments or display a sign or in any other way advertise or represent that that person practices the fitting and sale of hearing instruments unless that person holds an unsuspended, unrevoked license issued by the board as provided in this chapter. The license must be conspicuously posted in the licensee’s office or place of business. Duplicate licenses must be issued by the board to valid licenseholders operating more than one office for a fee determined by the board. A license confers upon the holder the right to select, fit, and sell hearing instruments, and the right to conduct any necessary hearing testing incident to the selecting, fitting, and selling of hearing instruments.
  2. This chapter does not prohibit a person maintaining an established business address from engaging in the business of selling or offering for sale hearing instruments at retail without a license if that person employs only properly licensed individuals in the direct sale and fitting of such products. Such persons shall file annually with the board a list of all licensees directly or indirectly employed by it. Those persons shall also file with the board a statement on a form approved by the board that they submit themselves to the rules of the board and the provisions of this chapter.

Source:

S.L. 1969, ch. 397, § 2; 1991, ch. 474, § 2; 2003, ch. 372, § 2.

43-33-02.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a hearing aid specialist, or determines that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 55; 1991, ch. 474, § 3; 2003, ch. 372, § 3.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-33-03. Receipt required to be furnished to a person supplied with hearing instruments.

  1. Any person who practices the fitting and sale of hearing instruments shall deliver to each person supplied with a hearing instrument a receipt that contains the licensee’s signature, the licensee’s business address, the number of the licensee’s certificate, the make and model of the hearing instrument furnished, and the full terms of the sale. If an instrument that is not new is sold, the receipt and the instrument’s container must be clearly marked as “used” or “reconditioned” whichever is applicable, with the terms of guarantee, if any.
  2. The receipt must bear in no smaller type than the largest used in the body copy portion the following: Any examination or representation made by a licensed hearing aid specialist in connection with the fitting and selling of this hearing instrument is not an examination, diagnosis, or prescription by a person licensed to practice medicine in this state and therefore, must not be regarded as medical opinion or advice.

Source:

S.L. 1969, ch. 397, § 3; 1991, ch. 474, § 4; 2003, ch. 372, § 4.

43-33-04. Persons and practices not affected.

This chapter does not prevent or restrict:

  1. A person from engaging in the practice of measuring human hearing for the purpose of selection of hearing instruments if the person or organization employing that person does not sell hearing instruments.
  2. A person employed as a hearing aid specialist by the federal government from engaging in the practice of fitting and dispensing hearing instruments if the person performs the practice solely within the confines or under the jurisdiction of the government of the United States.
  3. Activities and services of a person pursuing a course of study leading to a graduate degree in audiology at a college or university if the activities or services are under the direct supervision of a licensee, constitute a part of a supervised course of study, and the person is designated an audiology intern or trainee or by another title clearly indicating the training status appropriate to the level of training.

Source:

S.L. 1969, ch. 397, § 4; 1971, ch. 444, § 2; 1985, ch. 489, § 1; 1991, ch. 474, § 5; 1995, ch. 416, § 1; 2003, ch. 372, § 5.

Cross-References.

Audiologists, see N.D.C.C. ch. 43-37.

Osteopathic physicians, see N.D.C.C. ch. 43-17.

Otologists and other medical doctors, see N.D.C.C. ch. 43-17.

43-33-05. License by experience. [Repealed]

Repealed by S.L. 1991, ch. 474, § 17.

43-33-06. Issuance of license.

  1. The board shall register each applicant without discrimination if the applicant passes an examination as provided in section 43-33-07, and upon the applicant’s payment of a fee as established by the board, shall issue to the applicant a license signed by the secretary of the board. The license is effective until the expiration date stated on the license and identification card.
  2. Whenever the board determines that another state or jurisdiction has requirements equivalent to or higher than those in effect pursuant to this chapter for the practice to fit and sell hearing instruments, and that the state or jurisdiction has a program equivalent to or stricter than the program for determining whether applicants pursuant to this chapter are qualified to dispense and fit hearing instruments, the board may issue certificates of endorsement to applicants who hold current, unsuspended and unrevoked certificates or licenses by examination to fit and sell hearing instruments in the other state or jurisdiction. The board may not issue a license to an applicant for a certificate of endorsement if the applicant’s license or certificate from the other state or jurisdiction was obtained by experience. An applicant for a certificate of endorsement may not be required to submit to or undergo a qualifying examination, but the applicant must pay the fees required by the board. The holder of a certificate of endorsement must be registered in the same manner as holders of a license. The fee for an initial certificate of endorsement must be the same as the fee for an initial license. Fees, grounds for renewal, and procedures for the suspension and revocation of certificates of endorsement must be the same as for renewal, suspension, and revocation of a license.

Source:

S.L. 1969, ch. 397, § 6; 1991, ch. 474, § 6.

43-33-07. License by examination.

  1. Applicants may obtain a license by successfully passing a qualifying examination, if the applicant:
    1. Is at least eighteen years of age.
    2. Is of good moral character.
    3. Has an education equivalent to a four-year course in an accredited high school.
    4. Is free of contagious or infectious disease.
  2. The applicant for license by examination shall appear at a time, place, and before such persons as the board designates, to be examined by means of written and practical tests to demonstrate that the applicant is qualified to practice the fitting and sale of hearing instruments. The examination administered as directed by the board constituting standards for licensing may not be conducted in such a manner that college training is required to pass the examination. The examination may not imply that the applicant must possess the degree of medical competence normally expected of physicians.
  3. The board shall give examinations once a year at a time and place designated by the board and may give more frequent examinations if deemed necessary by the board.
  4. In addition to all other fees, the fee for an examination to determine qualifications for license must be set by the board.

Source:

S.L. 1969, ch. 397, § 7; 1971, ch. 444, § 3; 1973, ch. 120, § 55; 1977, ch. 413, § 1; 1985, ch. 489, § 2; 1987, ch. 73, § 28; 1991, ch. 474, § 7.

43-33-08. Temporary trainee permit.

  1. An applicant who fulfills the requirements regarding age, character, education, and health as set forth in section 43-33-07 may obtain a trainee permit upon application to the board. Previous experience or a waiting period may not be required to obtain a trainee permit.
  2. Upon receiving an application accompanied by a fee as established by the board, the board shall issue a trainee permit that permits the applicant to engage in the training of fitting and sale of hearing instruments for a period of one year under the direct supervision of a licensee. The trainee shall train in the same place of business as that of the supervisor and must complete at least thirty hours of book and visual aid training and at least ten hours of training with an audiometer, as well as a minimum of one week with the supervisor before the trainee’s first public contact alone. A trainee may not deal with the public outside the supervisor’s office or place of business until these requirements have been fulfilled. After this initial period of training, the trainee must spend one day per week in the office or place of business with the supervisor. The trainee may not make any sale of a hearing instrument without first consulting with the supervisor and obtaining the supervisor’s approval for the sale.
  3. If a person who holds a temporary trainee permit has not successfully passed the licensing examination during the one-year period from the date of issuance, the temporary trainee permit may be renewed or reissued once upon payment of a fee established by the board.
  4. A supervisor may not have more than three trainees under supervision at a time.

Source:

S.L. 1969, ch. 397, § 8; 1971, ch. 444, § 4; 1987, ch. 532, § 2; 1991, ch. 474, § 8; 2003, ch. 372, § 6.

43-33-09. Scope of examination.

The qualifying examination provided in section 43-33-07 consists of:

  1. Tests of knowledge in the following areas pertaining to the fitting and sale of hearing instruments:
    1. Basic physics of sound;
    2. The anatomy and physiology of the ear;
    3. The function of hearing instruments;
    4. Elementary audiology; and
    5. Any other requirements established by the board.
  2. Practical tests of proficiency in the following techniques pertaining to the fitting of hearing instruments:
    1. Pure tone audiometry, including air conduction testing and bone conduction testing;
    2. Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;
    3. Masking when indicated;
    4. Recording and evaluation of audiograms and speech audiometry to determine proper selection and adaptation of a hearing instrument;
    5. Taking earmold impressions;
    6. Hearing instrument modification technique; and
    7. Any other requirements established by the board.

Source:

S.L. 1969, ch. 397, § 9; 1971, ch. 444, § 5; 1991, ch. 474, § 9.

43-33-10. Notice to board of place of business — Notice to licensees — How given by board.

  1. A licensee shall notify the board in writing of a regular address of the place or places where the licensee engages or intends to engage in the fitting or the sale of hearing instruments.
  2. The board shall keep a record of the place of business of licensees.
  3. Any notice required to be given by the board to a licensee must be mailed by certified mail at the address of the last place of business of which the person has notified the board.
  4. The board shall keep a record of the trainees, their place of training, and their supervisors.

Source:

S.L. 1969, ch. 397, § 10; 1971, ch. 444, § 6; 1991, ch. 474, § 10; 2003, ch. 372, § 7.

43-33-11. Annual renewal of license — Fees — Continuing education — Effect of failure to renew.

Each licensee shall annually, before the expiration of the person’s license, pay to the board the proper fees, together with a certificate showing attendance for a minimum of ten hours of continuing education per calendar year at schools or seminars approved by the board as defined by rule, pertaining to the fitting and sales of hearing instruments, for a renewal of a license. A thirty-day grace period must be allowed after the expiration of a license when a license may be renewed on payment of the proper fees together with the certificate of continuing education to the board. After expiration of the grace period, the board may renew a license upon the payment of the proper fees together with the certificate of continuing education to the board. A licensee who applies for renewal, whose license has expired, may not be required to submit to an examination as a condition to renewal, if the renewal application is made within two years from the date of the expiration and is accompanied with a certificate of continuing education during the twelve months immediately preceding the date of application.

Source:

S.L. 1969, ch. 397, § 11; 1975, ch. 413, § 1; 1987, ch. 532, § 3; 1991, ch. 474, § 11; 2003, ch. 372, § 8.

43-33-12. Complaint procedure — Grounds for revocation or suspension of license — Appeals.

  1. Any person wishing to make a complaint against a licensee under this chapter shall file a written complaint with the board within one year from the date of the action upon which the complaint is based. If the board determines the charges made in the complaint are sufficient to warrant a hearing to determine whether the license may be suspended or revoked, it shall establish a time and place for a hearing and order the licensee complained against to appear and defend against the complaint. The order must have annexed thereto a copy of the complaint, and the order and copy of the complaint must be served upon the licensee at least twenty days before the date set for hearing, either personally or by registered mail sent to the licensee’s last-known address. Continuances or adjournments of a hearing date must be made for good cause. At the hearing the licensee complained against may be represented by counsel. The licensee complained against and the board may take depositions in advance of hearing and after service of the complaint and either may compel the attendance of witnesses by subpoenas issued by the board. Either party taking depositions shall give at least five days’ written notice to the other party of the time and place of such depositions, and the other party may attend with counsel if desired and cross-examine.
  2. The board may revoke or suspend a person’s license for any of the following causes:
    1. The conviction of an offense determined by the board to have a direct bearing upon a person’s ability to serve the public as a hearing aid specialist, or the board determines, following conviction of any offense, that a person is not sufficiently rehabilitated under section 12.1-33-02.1.
    2. Procuring of a license by fraud or deceit.
    3. Unethical conduct. Unethical conduct means:
      1. Obtaining any fee or making any sale by fraud or misrepresentation.
      2. Knowingly employing, directly or indirectly, any suspended or unregistered person to perform any work covered by this chapter.
      3. Using, or causing or promoting the use of, any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or any other representation, however disseminated or published, which is misleading, deceptive, or untruthful.
      4. Advertising a particular model or type of hearing instrument for sale when purchasers or prospective purchasers responding to the advertisement cannot purchase the advertised model or type if it is established that the purpose of the advertisement is to obtain prospects for the sale of a different model or type than that advertised.
      5. Representing that the service or advice of a person licensed to practice medicine will be used or made available in the selection, fitting, adjustment, maintenance, or repair of hearing instruments when that is not true, or using the word “doctor”, “clinic”, “audiologist”, or similar words, abbreviations, or symbols which tend to connote the medical or audiological profession when that is not accurate, or use of the titles “hearing instrument specialist”, “hearing aid specialist”, “board-certified hearing aid specialist”, or “board-certified hearing instrument specialist” when the qualifying requirements have not been met through the international hearing society or national board for certification in hearing instrument sciences.
      6. Habitual intemperance.
      7. Gross immorality.
      8. Permitting another to use the person’s license.
      9. Advertising a manufacturer’s product or using a manufacturer’s name or trademark that implies a relationship with the manufacturer which does not exist.
      10. To directly or indirectly give or offer to give, or permit or cause to be given money or anything of value to any person who advises another in a professional capacity as an inducement to influence them or have them influence others to purchase or contract to purchase products sold or offered for sale by a licensee, or to influence persons to refrain from dealing in the products of competitors.
      11. Sale of a hearing instrument to a person without adequate and proper audiometric testing.
      12. Sale of a hearing instrument to a person when the need for a hearing instrument has not been established after adequate and proper audiometric testing.
    4. Conducting business while suffering from a contagious or infectious disease.
    5. Engaging in the fitting and sale of hearing instruments under a false name or alias with fraudulent intent.
    6. For any violation of this chapter.
    7. The fitting and sale of a hearing instrument to any person under eighteen years of age unless within six months before the fitting the person to be fitted has been examined by a physician and audiologist to determine whether there exist any physical deficiencies that would prohibit the effective use of a hearing instrument.
  3. Appeals from suspension or revocation may be made under chapter 28-32.

Source:

S.L. 1969, ch. 397, § 12; 1971, ch. 444, §§ 7 to 9; 1977, ch. 130, § 56; 1985, ch. 489, § 3; 1991, ch. 474, § 12; 2003, ch. 372, § 9.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-33-13. Prohibited acts and practices.

A person may not:

  1. Sell, barter, or offer to sell or barter a license.
  2. Purchase or procure by barter a license with intent to use it as evidence of the holder’s qualification to practice the fitting and sale of hearing instruments.
  3. Alter a license with fraudulent intent.
  4. Use or attempt to use as a valid license a license that has been purchased, fraudulently obtained, counterfeited, or materially altered.
  5. Willfully make a false statement in an application for a license or application for renewal of a license.
  6. Advertise without giving the registered business or personal name and business address or telephone number of the person.

Source:

S.L. 1969, ch. 397, § 13; 1991, ch. 474, § 13.

43-33-14. Powers and duties of board.

The board shall:

  1. Authorize all disbursements and collect fees necessary to carry out this chapter.
  2. Supervise issuance of licenses and prepare and administer qualifying examinations to test the knowledge and proficiency of applicants licensed by examination.
  3. Register persons who apply to the board and who are qualified to engage in the fitting and sale of hearing instruments.
  4. Issue and renew licenses.
  5. Suspend or revoke licenses.
  6. Designate the time and place for examining applicants.
  7. Appoint representatives to conduct or supervise the examination.
  8. Adopt rules not inconsistent with the laws of this state which are necessary to carry out this chapter.
  9. Appoint or employ subordinate employees.
  10. At the board’s discretion, provide funds to assist in providing continuing education for licensees.

Source:

S.L. 1969, ch. 397, § 14; 1991, ch. 474, § 14; 2003, ch. 372, § 10.

43-33-15. Board of hearing aid specialists.

  1. There is established a board of hearing aid specialists to carry out this chapter.
  2. Members of the board must be residents of the state. The board consists of four licensees who are not audiologists or otolaryngologists, one otolaryngologist, three licensees who are audiologists, and two consumers. Each hearing aid specialist on the board must be primarily engaged as a hearing aid specialist, must have at least five years of experience in this state, and must hold a valid license as a hearing aid specialist.
  3. The governor shall appoint the members of the board. The term of office of each member is four years. Before a member’s term expires, the governor shall appoint a successor to assume the member’s duties at the expiration of the term. A vacancy in the office of a member must be filled by appointment for the unexpired term. The members shall designate annually one member to serve as chairman and another to serve as secretary-treasurer. A member of the board may not be reappointed to the board until at least one year after the expiration of that person’s second term of office.
  4. Except for the secretary-treasurer, each member shall serve without compensation except mileage and travel expenses while engaged in the performance of the duties of the office as is provided for state employees. The board shall establish the amount of compensation for the secretary-treasurer.

Source:

S.L. 1969, ch. 397, § 15; 1971, ch. 444, § 10; 1991, ch. 474, § 15; 1995, ch. 416, § 2; 2003, ch. 372, § 11.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expense of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-33-16. Duties of the board. [Repealed]

Repealed by S.L. 1991, ch. 474, § 17.

43-33-17. Meetings of board.

The board shall meet not less than twice each year at a place, day, and hour determined by the board. The board shall also meet at such other times and places as are necessary.

Source:

S.L. 1969, ch. 397, § 17; 1991, ch. 474, § 16.

43-33-18. Violations — Penalty — Injunction.

Any person who fits or dispenses hearing instruments without a license or trainee permit as provided in this chapter or who violates section 43-33-13 is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of injunction is available to restrain and enjoin violations of any provisions of this chapter without proof of actual damages sustained by any person.

Source:

S.L. 1969, ch. 397, § 18; 1975, ch. 106, § 506; 2009, ch. 359, § 8.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-33-19. Severability clause. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

CHAPTER 43-34 Nursing Home Administrators

43-34-01. Definitions. [Effective through August 31, 2022]

For the purposes of this chapter and as used herein:

  1. “Board” means the North Dakota state board of examiners for nursing home administrators hereinafter created.
  2. “Nursing home” means any institution or facility defined as such for licensing purposes under North Dakota state law or pursuant to the rules and regulations for nursing homes by the state department of health, whether proprietary or nonprofit, including nursing homes owned or administered by the state government or an agency or political subdivision thereof.
  3. “Nursing home administrator” means a person who administers, manages, supervises, or is in general administrative charge of a North Dakota nursing home whether such individual has an ownership interest in such home and whether the individual’s functions and duties are shared with one or more individuals.

Source:

S.L. 1969, ch. 398, § 1; 1971, ch. 445, § 1; 1995, ch. 243, § 2.

Collateral References.

Patient tort liability of rest, convalescent or nursing homes, 83 A.L.R.3d 871.

False imprisonment in connection with confinement in nursing home or hospital, 4 A.L.R.4th 449.

Licensing and regulation of nursing or rest homes, 53 A.L.R.4th 689.

Nursing homes as exempt from property taxation, 34 A.L.R.5th 529.

Liability of nursing home for violating statutory duty to notify third party concerning patient’s medical condition, 46 A.L.R.5th 821.

Validity, Construction, and Application of State Civil and Criminal Elder Abuse Laws, 113 A.L.R.5th 431.

Construction and Application of Long-Term Care Insurance Policies, 30 A.L.R.6th 395.

Validity, Construction, and Application of Arbitration Agreement in Contract for Admission to Nursing Home, 50 A.L.R.6th 187.

43-34-01. Definitions. [Effective September 1, 2022]

For the purposes of this chapter and as used herein:

  1. “Board” means the North Dakota state board of examiners for nursing home administrators hereinafter created.
  2. “Nursing home” means any institution or facility defined as such for licensing purposes under North Dakota state law or pursuant to the rules and regulations for nursing homes by the department of health and human services, whether proprietary or nonprofit, including nursing homes owned or administered by the state government or an agency or political subdivision thereof.
  3. “Nursing home administrator” means a person who administers, manages, supervises, or is in general administrative charge of a North Dakota nursing home whether such individual has an ownership interest in such home and whether the individual’s functions and duties are shared with one or more individuals.

Source:

S.L. 1969, ch. 398, § 1; 1971, ch. 445, § 1; 1995, ch. 243, § 2; 2021, ch. 352, § 364, effective September 1, 2022.

43-34-02. Composition of the board. [Effective through August 31, 2022]

There is hereby created the state board of examiners for nursing home administrators which consists of nine members.

  1. Two members of the board must be the state health officer and the executive director of the department of human services or the members’ designees.
  2. One member of the board must be a physician appointed to the board for a three-year term by the governor.
  3. One member of the board must be a hospital administrator appointed to the board for a three-year term by the governor.
  4. Four members of the board must be licensed nursing home administrators appointed to the board for three-year terms by the governor.
  5. One member of the board must be a nurse appointed to the board for a three-year term by the governor.
  6. Any vacancies occurring in the appointments made by the governor must be filled by the governor.
  7. Appointive members may be removed by the governor for cause after due notice and hearing.

Source:

S.L. 1969, ch. 398, § 2; 1971, ch. 445, § 2; 1979, ch. 474, § 1; 1981, ch. 435, § 22; 1987, ch. 533, § 1; 2009, ch. 377, § 2.

Cross-References.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

43-34-02. Composition of the board. [Effective September 1, 2022]

There is hereby created the state board of examiners for nursing home administrators which consists of nine members.

  1. Two members of the board must be the state health officer and the executive director of the department of health and human services or the members’ designees.
  2. One member of the board must be a physician appointed to the board for a three-year term by the governor.
  3. One member of the board must be a hospital administrator appointed to the board for a three-year term by the governor.
  4. Four members of the board must be licensed nursing home administrators appointed to the board for three-year terms by the governor.
  5. One member of the board must be a nurse appointed to the board for a three-year term by the governor.
  6. Any vacancies occurring in the appointments made by the governor must be filled by the governor.
  7. Appointive members may be removed by the governor for cause after due notice and hearing.

Source:

S.L. 1969, ch. 398, § 2; 1971, ch. 445, § 2; 1979, ch. 474, § 1; 1981, ch. 435, § 22; 1987, ch. 533, § 1; 2009, ch. 377, § 2; 2021, ch. 352, § 365, effective September 1, 2022.

43-34-03. Qualifications for licensure.

The board may issue licenses to qualified individuals entitling the individuals to serve and practice nursing home administration or otherwise hold themselves out as duly licensed nursing home administrators, and shall establish qualification criteria for such individuals by rule. An applicant for a license must meet the conditions and requirements as may be prescribed by the board by rule.

Source:

S.L. 1969, ch. 398, § 3; 1973, ch. 120, § 56; 1973, ch. 360, § 1; 1979, ch. 474, § 2; 2009, ch. 377, § 3.

43-34-03.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a nursing home administrator, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 57.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-34-03.2. Criminal history record checks.

The board shall require an applicant for licensure under section 43-34-04, 43-34-11, or 43-34-12 to submit to a statewide and nationwide criminal history record check. The board may require any licensee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or licensee.

Source:

S.L. 2009, ch. 377, § 7.

43-34-04. Licensing function.

The board shall license nursing home administrators in accordance with rules and regulations issued, and from time to time revised by it. A nursing home administrator’s license is not transferable and is valid until surrendered for cancellation or suspended or revoked for violation of this chapter or any other laws or regulations relating to the proper administration and management of a nursing home. Any denial of issuance or renewal, suspension, or revocation under any section of this chapter is subject to review upon the timely request of the licensee and pursuant to chapter 28-32.

Source:

S.L. 1969, ch. 398, § 4.

43-34-05. License fees.

Each individual licensed as a nursing home administrator shall pay a license fee in an amount to be fixed by the board, which may not exceed two hundred fifty dollars per annum.

Source:

S.L. 1969, ch. 398, § 5; 1971, ch. 445, § 5; 1973, ch. 360, § 2; 1977, ch. 414, § 1; 1987, ch. 533, § 2; 1995, ch. 417, § 1; 2009, ch. 377, § 4.

43-34-06. Fund created. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-34-07. Organization of board.

The board shall elect from its membership a chairman, vice chairman, and secretary-treasurer, and shall adopt rules and regulations to govern its proceedings. Each member shall receive, as compensation for the member’s services, an amount agreed upon by the board but not to exceed that of other state boards. All members must be allowed necessary travel expenses, as may be approved by the board, which are payable in the same manner as travel expense of other state officials. The board may employ and fix the compensation and duties of necessary personnel to assist it in the performance of its duties.

Source:

S.L. 1969, ch. 398, § 7.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-34-08. Exclusive jurisdiction of board.

The board shall have sole and exclusive authority to determine the qualifications, competence, and fitness of any person to serve as an administrator of a nursing home under the provisions of this chapter, and the holder of a license under the provisions of this chapter must be deemed qualified to serve as the administrator of a nursing home.

Source:

S.L. 1969, ch. 398, § 8.

43-34-09. Duties of the board.

The board has the duty and responsibility to:

  1. Develop, impose, and enforce standards which must be met by individuals in order to receive a license as a nursing home administrator, which standards must be designed to ensure that nursing home administrators will be individuals who are of good character and are otherwise suitable, and who, by training or experience in the field of institutional administration, are qualified to serve as nursing home administrators.
  2. Develop and apply appropriate techniques, including examination and investigations, for determining whether an individual meets such standards.
  3. Issue licenses to individuals determined, after application of such techniques, to meet such standards, and for cause, after due notice and hearing, to revoke or suspend licenses previously issued by the board if the individual holding such license is determined substantially to have failed to conform to the requirements of such standards.
  4. Establish and carry out procedures designed to ensure that individuals licensed as nursing home administrators will, during any period that they serve as such, comply with the requirements of such standards.
  5. Receive, investigate, and take appropriate action with respect to, and including the revocation of a license if necessary after due notice and hearing and for cause, any charge or complaint filed with the board to the effect that any individual licensed as a nursing home administrator has failed to comply with the requirements of such standards.
  6. Conduct a continuing study and investigation of nursing homes, and administrators of nursing homes within the state with a view to the improvement of the standards imposed for the licensing of such administrators and of procedures and methods for the enforcement of such standards with respect to administrators of nursing homes who have been licensed as such.
  7. Conduct, or cause to be conducted, one or more courses of instruction and training sufficient to meet the requirements of this chapter, and make provisions for such courses and their accessibility to residents of this state unless it finds that there are and approves a sufficient number of courses which courses are conducted by others within this state. In lieu thereof the board may approve courses conducted within and without this state as sufficient to meet the education and training requirements of this chapter.

Source:

S.L. 1969, ch. 398, § 9.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-34-10. Renewal of license.

Every holder of a nursing home administrator’s license shall renew it annually, by making application to the board. Such renewals must be granted as a matter of course, unless the board finds, after due notice and hearing, that the applicant has acted or failed to act in such manner or under such circumstances as would constitute grounds for suspension or revocation of a license.

Source:

S.L. 1969, ch. 398, § 10; 1973, ch. 360, § 3.

43-34-11. Emergency licenses.

In the event of an unexpected vacancy in a nursing home administrator’s position, the owner, the governing body, or other appropriate authority of the nursing home may designate an acting administrator to whom the board may issue an emergency license. This emergency license is in force for a period not to exceed ninety days but may be renewed for an additional ninety days by the board upon good cause shown.

Source:

S.L. 1969, ch. 398, § 11; 1971, ch. 445, § 3; 2009, ch. 377, § 5.

43-34-12. Licensure of individuals licensed in other jurisdictions.

The board may issue a nursing home administrator’s license, without examination, to any individual who holds a current license as a nursing home administrator from another jurisdiction, if the board finds that the standards for licensure in the other jurisdiction are at least the substantial equivalent of those prevailing in this state at the time of application and that the applicant is otherwise qualified.

Source:

S.L. 1969, ch. 398, § 12; 2009, ch. 377, § 6.

43-34-13. Offense — Penalty.

It is a class A misdemeanor for any person to act or serve in the capacity as a nursing home administrator unless that person is the holder of a license as a nursing home administrator, issued in accordance with the provisions of this chapter.

Source:

S.L. 1969, ch. 398, § 13; 1975, ch. 106, § 507.

43-34-14. Laws in conflict repealed.

All laws and parts of laws in conflict with any of the provisions of this chapter are hereby repealed.

Source:

S.L. 1969, ch. 398, § 14.

CHAPTER 43-35 State Board of Water Well Contractors

43-35-01. Declaration of policy.

The business or activity of constructing water wells is declared to be an industry affecting the public welfare, health, and safety of all the people of North Dakota and requires the exercise of the sovereign powers of the state for a public purpose, and it hereby is declared necessary that a state board of water well contractors be established, which in the exercise of its powers must be deemed to be an administrative agency within the purview of chapter 28-32.

Source:

S.L. 1971, ch. 446, § 1.

43-35-02. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of water well contractors.
  2. “Constructing” a well includes boring, digging, drilling, or excavating and installing casings, well screens, and other appurtenances.
  3. “Drilling” means making any opening in the earth’s surface by drilling, boring, or otherwise, and includes inserting any object into any part of the earth’s surface for the purpose of obtaining an underground water supply except drainage tiles or similar devices designed primarily to improve land by removing excess water.
  4. “Water well contractor” means any person who is certified to conduct the business of well drilling under the provisions of this chapter.
  5. “Well” means any artificial opening or artificially altered natural opening, however made, by which ground water is sought, including test holes drilled for the purpose of exploration for and development of ground water, or through which ground water flows under natural pressure or is artificially withdrawn, provided that this definition does not include a natural spring, stock ponds, or holes drilled for the purpose of exploration for production of oil, gas, gravel, or other minerals.

Source:

S.L. 1971, ch. 446, § 2; 1979, ch. 475, § 1.

43-35-03. State board of water well contractors — Members’ appointment — Qualification.

The state board of water well contractors consists of the director of the department of water resources and the director of the department of environmental quality, or their duly authorized designees, two water well contractors appointed by the governor, one geothermal system driller or one monitoring well contractor appointed by the governor, one water well pump and pitless unit installer appointed by the governor, and one member appointed at large by the governor.

Source:

S.L. 1971, ch. 446, § 3; 1981, ch. 435, § 23; 1985, ch. 490, § 1; 2007, ch. 382, § 1; 2017, ch. 199, § 44, effective April 29, 2019; 2019, ch. 365, § 1, effective March 29, 2019; 2021, ch. 488, § 22, effective August 1, 2021.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

43-35-04. Appointive members to qualify — Terms of office — Filling vacancy.

Each appointive member to the board shall qualify by taking the oath of office required of civil officers and shall hold office for a term of four years or until a successor is appointed and qualified, except that the initial appointments must be for terms of two and four years, respectively, and expire on June thirtieth of the respective years. A vacancy on the board must be filled for the unexpired term in the same manner as was the member whose office is vacant.

Source:

S.L. 1971, ch. 446, § 4.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-35-05. Officers — Office.

The members of the board shall meet annually in July at a time and place designated by the chairman. The board shall select from the board’s membership a chairman, vice chairman, and secretary-treasurer. Additional board meetings may be provided for in the bylaws or rules adopted by the board.

Source:

S.L. 1971, ch. 446, § 5; 2015, ch. 305, § 1, effective August 1, 2015.

43-35-06. Secretary-treasurer — Bond — Executive officer.

Promptly upon assuming the office, the secretary-treasurer shall furnish a bond satisfactory to the board for the faithful performance and discharge of the secretary-treasurer’s duties in an amount determined by the board, the premium for which is to be paid from board funds. The board shall appoint one of its members to serve as the executive officer for the board.

Source:

S.L. 1971, ch. 446, § 6; 1975, ch. 258, § 25; 2007, ch. 382, § 2; 2015, ch. 305, § 2, effective August 1, 2015.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-35-07. Compensation and reimbursement of expenses.

Each appointive member of the board is entitled to receive up to one hundred twenty-five dollars compensation per day and is entitled to receive reimbursement for expenses in the same amounts as provided for in sections 44-08-04 and 54-06-09 while attending board meetings or otherwise engaged in the official business of the board. The board shall establish the compensation rate by rule.

Source:

S.L. 1971, ch. 446, § 7; 1979, ch. 475, § 2; 1997, ch. 432, § 19; 2015, ch. 305, § 3, effective April 13, 2015.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Out-of-state travel, prior authorization required, see N.D.C.C. § 54-06-10.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-35-08. Office, administrative, and technical personnel — Compensation.

The board may employ such office, administrative, and technical personnel as it deems necessary and shall fix their compensation and prescribe their duties. It may retain legal counsel and incur such other expenses as and when deemed necessary to carry out the provisions of this chapter.

Source:

S.L. 1971, ch. 446, § 8.

43-35-09. Deposit of fees — Use and appropriation of funds.

All fees received by the treasurer under this chapter must be deposited to the credit of the board in the Bank of North Dakota and disbursed only on order of the chairman and secretary-treasurer. Funds collected for certifying and inspections may be expended in such manner as the board deems necessary to best carry out the provisions of this chapter. All funds accruing to the credit of the state board of water well contractors are hereby permanently appropriated to the board for the purpose of this chapter.

Source:

S.L. 1971, ch. 446, § 9; 2015, ch. 305, § 4, effective August 1, 2015.

43-35-10. Powers and duties of board.

The board has the power and it is its duty:

  1. To effectively administer and carry out the provisions of this chapter.
  2. To adopt bylaws, rules, and regulations for the conduct of the business affairs of the board and administration of its functions.

Source:

S.L. 1971, ch. 446, § 10.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-35-11. Certificate required.

A person, partnership, firm, corporation, or limited liability company may not engage in the business of water well contracting or water well pump and pitless unit installation, monitoring well contracting, or geothermal system drilling unless certified to do so by the board of water well contractors.

Source:

S.L. 1971, ch. 446, § 11; 1985, ch. 490, § 2; 1993, ch. 54, § 106; 2007, ch. 382, § 3.

43-35-11.1. Conviction not bar to certification — Exceptions.

Conviction of an offense does not disqualify a person from certification under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a water well contractor, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 58.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-35-12. Examination — When held — Notice.

The board shall hold meetings at such times and such places as it shall designate for the purpose of administering an examination to those persons desiring to become certified as water well contractors, water well pump and pitless unit installers, monitoring well contractors, or geothermal system drillers. The board shall give no less than ten days’ written notice to each applicant of the time and place of such examination. The board shall develop separate examinations for the certification of water well contractors, water well pump and pitless unit installers, monitoring well contractors, and geothermal system drillers.

Source:

S.L. 1971, ch. 446, § 12; 1985, ch. 490, § 3; 1987, ch. 534, § 1; 2007, ch. 382, § 4.

43-35-13. Certificate — How obtained — Fee — Bond.

  1. Any person who takes the examination to become a certified water well contractor must first complete a minimum of one-year apprenticeship or experience in water well drilling and construction under the direct supervision of a certified water well contractor or have completed a career and technical education program of at least one year in water well construction and shall make application to the board.
  2. Any person who takes the examination to become a certified water well pump and pitless unit installer must first complete a minimum of one-year apprenticeship or experience in water well pump and pitless unit installation under the direct supervision of a certified water well pump and pitless unit installer or have completed a career and technical education program of at least one year in water well pump and pitless unit installation.
  3. Any person who takes the examination to become a certified monitoring well contractor must first complete a minimum of one-year apprenticeship or experience in monitoring well construction under the direct supervision of a certified water well contractor or a certified monitoring well contractor or have completed a career and technical education program of at least one year in water well construction or hold a bachelor’s degree in engineering or geology from an approved school and shall make application to the board.
  4. Any person who takes the examination to become a certified geothermal system driller must first complete either a minimum of one year of apprenticeship under the direct supervision of a certified geothermal system driller or have a minimum of two thousand forty installation hours of experience in geothermal system drilling working under the direct supervision of a certified geothermal system driller, or, in the alternative, must first complete career and technical education relating to geothermal system drilling lasting at least one school year.
  5. A person applying to take a certification examination shall pay to the board treasurer a nonrefundable examination fee in the amount of one hundred dollars. If upon examination the applicant is found to be qualified as a water well contractor, a water well pump and pitless unit installer, a monitoring well contractor, or a geothermal system driller, the board shall issue to that person an appropriate certificate upon the applicant’s executing and filing with the board a bond as required in this chapter. The board may offer a combined examination for certification of a person as a water well contractor and a water well pump and pitless unit installer and may issue a single certificate for successful completion of the combined examination. Certificates issued under this chapter are not transferable.

Source:

S.L. 1971, ch. 446, § 13; 1983, ch. 488, § 1; 1985, ch. 490, § 4; 1987, ch. 534, § 2; 2003, ch. 138, § 86; 2007, ch. 382, § 5; 2011, ch. 325, § 1.

43-35-14. Bond required.

Before receiving a certificate under this chapter, a qualified applicant shall execute and deposit with the board a surety bond conditioned for the faithful performance of all water well, monitoring well, pump and pitless unit, or geothermal system installation contracts undertaken by the applicant and the strict compliance with this chapter. The required amount of a surety bond is fifteen thousand dollars for a water well contractor and is two thousand dollars for a monitoring well, pump and pitless unit, or geothermal system installation contractor.

Source:

S.L. 1971, ch. 446, § 14; 1985, ch. 490, § 5; 1987, ch. 534, § 3; 2007, ch. 382, § 6; 2015, ch. 305, § 5, effective August 1, 2015.

43-35-15. Certification of persons previously engaged in contracting. [Repealed]

Repealed by S.L. 2011, ch. 325, § 3.

43-35-15.1. Certification of persons engaged in installation of water well pumps and pitless units prior to certification requirement. [Repealed]

Repealed by S.L. 2011, ch. 325, § 3.

43-35-15.2. Certification of persons engaged in monitoring well contracting prior to certification requirement. [Repealed]

Repealed by S.L. 2011, ch. 325, § 3.

43-35-15.3. Certification of persons engaged in drilling of geothermal systems before certification requirement. [Repealed]

Repealed by S.L. 2011, ch. 325, § 3.

43-35-16. Display of certification.

The board shall furnish each certified water well contractor a decal for each drill rig the contractor owns or leases. Such decal must be displayed in a conspicuous place on the drill rig.

Source:

S.L. 1971, ch. 446, § 16; 1985, ch. 490, § 7.

43-35-17. Renewal of certificate — Continuing education.

  1. A certificate issued under this chapter is valid for up to one year and expires on the thirty-first day of December in the year of issuance. To renew a certificate, a certificate holder shall submit to the board a completed renewal application. The completed renewal application must be:
    1. Submitted to the board before April first in the year following the certificate’s expiration;
    2. Accompanied by a fee in an amount set by the board not to exceed two hundred dollars;
    3. Accompanied by any continuing education reporting information required under this section; and
    4. Accompanied by a bond as provided in section 43-35-14.
  2. Except as provided under subsection 3, every two years the renewal application must include reporting information verifying the applicant completed six hours of board-approved continuing education during the two-year reporting cycle.
  3. A renewal application for certification as a water well pump and pitless unit installer must include reporting information verifying the applicant completed two hours of board-approved continuing education during the two-year reporting cycle.
  4. The board shall adopt rules establishing continuing education standards.

Source:

S.L. 1971, ch. 446, § 17; 1979, ch. 475, § 3; 1999, ch. 392, § 1; 2003, ch. 373, § 1; 2011, ch. 325, § 2; 2019, ch. 365, § 2, effective March 29, 2019.

43-35-18. Firm engaged in water well work to employ certified water well contractor — Exception.

No person, partnership, association, corporation, or limited liability company shall engage in the business of constructing a water well in this state unless at all times a certified water well contractor, who is responsible for the proper construction or alteration thereof, is in charge; provided, however, that nothing in this chapter shall be construed so as to prohibit any person, partnership, association, corporation, or limited liability company from constructing any water well on the person’s or entity’s own premises for the person’s or entity’s own use.

Source:

S.L. 1971, ch. 446, § 18; 1993, ch. 54, § 106.

43-35-18.1. Firm engaged in installation of water well pump and pitless units to employ certified installer — Exception.

No person may engage in the business of installing water well pumps and pitless units in the state after July 1, 1986, unless a certified installer, who is responsible for the proper installation of the pump and pitless unit, is in charge of the installation. This chapter does not prohibit any person from installing water well pumps and pitless units on that person’s own premises for that person’s own use.

Source:

S.L. 1985, ch. 490, § 8.

43-35-18.2. Firm engaged in monitoring well work to employ certified monitoring well contractor — Exception.

No person may engage in the business of constructing a monitoring well in this state unless at all times a certified monitoring well contractor, who is responsible for the proper construction or alteration thereof, is in charge. This section does not prohibit any person from installing monitoring wells on that person’s own premises for that person’s own use.

Source:

S.L. 1987, ch. 534, § 7.

43-35-18.3. Firm engaged in drilling of geothermal systems to employ certified driller — Exception.

A person may not engage in the business of drilling geothermal systems in the state after July 1, 2008, unless a certified driller, who is responsible for the proper drilling of the geothermal system, is in charge of the drilling. This chapter does not prohibit a person from drilling geothermal systems on that person’s own premises for that person’s own use.

Source:

S.L. 2007, ch. 382, § 8.

43-35-19. Standards for well drilling — Reports required.

All construction of water wells must comply with the rules adopted by the department of environmental quality. Within thirty days after the completion of each well, each water well contractor shall furnish to the board on forms provided by the board any information required by the department of environmental quality, including a log of formations penetrated, well depth, and casing size and weight. A copy of each report also must be furnished to the customer. All information submitted must remain the property of the board.

Source:

S.L. 1971, ch. 446, § 19; 1995, ch. 243, § 2; 2017, ch. 199, § 45, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Collateral References.

Water well-drilling contracts, 90 A.L.R.2d 1346, 1405.

43-35-19.1. Standards for installation of water well pumps and pitless units.

All installation of water well pumps and pitless units must comply with the rules adopted by the department of environmental quality and the board.

Source:

S.L. 1985, ch. 490, § 9; 1995, ch. 243, § 2; 2017, ch. 199, § 46, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

43-35-19.2. Standards for installation of monitoring wells — Reports required.

All monitoring wells constructed must comply with the rules adopted by the department of environmental quality and the board. Each monitoring well contractor shall furnish all reports required by the rules of the department of environmental quality or the board.

Source:

S.L. 1987, ch. 534, § 8; 1995, ch. 243, § 2; 2017, ch. 199, § 47, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

43-35-19.3. Standards for drilling of geothermal systems.

All drilling of geothermal systems must comply with the rules adopted by the state geologist and the board.

Source:

S.L. 2007, ch. 382, § 9.

43-35-20. Revocation or suspension of certificate — Grounds for — How reinstated.

The board may suspend or revoke any certificate issued under this chapter if the holder is found guilty by the board of any violation of the rules adopted by the department of environmental quality or the board after a hearing held substantially in conformance with chapter 28-32. Six months after any certificate has been revoked, an application may be made for another certificate in the same manner as a new certificate is obtained.

Source:

S.L. 1971, ch. 446, § 20; 1985, ch. 490, § 10; 1995, ch. 243, § 2; 2017, ch. 199, § 48, effective April 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

43-35-21. Certification to nonresidents — Reciprocity.

To the extent other states providing for the certification of water well contractors, monitoring well contractors, water well pump and pitless unit installers, or geothermal system drillers provide for similar action, the board may grant certification to water well contractors, monitoring well contractors, water well pump and pitless unit installers, and geothermal system drillers certified by other states, upon payment by the applicant of the required fee and the furnishing of a bond as provided by section 43-35-14, after being furnished with proof that the qualifications of the applicant are equal to the qualifications of holders of such certificates in this state.

Source:

S.L. 1971, ch. 446, § 21; 1985, ch. 490, § 11; 1987, ch. 534, § 4; 2007, ch. 382, § 10.

43-35-22. Violation of chapter — Penalty.

  1. Any person contracting to drill a water well or monitoring well, install a pump or pitless unit, or drill a geothermal system for another without being certified in accordance with this chapter or any person that willfully violates a provision of this chapter, is guilty of a class B misdemeanor.
  2. In addition to criminal sanctions that may be imposed, the board or the district court may assess the cost to repair any damage caused by the violation, any costs incurred by the board in the action, and a civil penalty against a person that violates any provision of this chapter or any rule adopted by the board. The civil penalty may not exceed ten thousand dollars. The civil penalty may be adjudicated by the district court or through an administrative hearing under chapter 28-32.
  3. If a person against which a civil penalty was assessed after an administrative hearing does not pay or appeal the civil penalty within thirty days of receiving notice of the order, interest begins to accrue on the unpaid amount of the civil penalty at the rate of twelve percent per annum and the board may pursue a judgment from the district court. Notwithstanding section 57-20-22, a violator shall pay to the board all interest and penalties. The proceeds of any civil penalty or interest received by the board, after retention of any costs incurred by the board in the action, must be transferred to the state treasurer for deposit in the state general fund.

Source:

S.L. 1971, ch. 446, § 22; 1975, ch. 106, § 508; 1985, ch. 490, § 12; 1987, ch. 534, § 5; 2007, ch. 382, § 11; 2015, ch. 305, § 6, effective August 1, 2015.

43-35-23. Continuing education — Preapproval requirements.

  1. As provided under section 43-35-17, each certificate holder shall earn board-approved continuing education during every two-year reporting cycle to qualify for certificate renewal, except a new certificate holder is not required to earn continuing education until the second renewal year following initial certification.
  2. Continuing education coursework may be provided by the national ground water association, the North Dakota well drillers association, incorporated, a board-sponsored workshop, the department of environmental quality, the state water commission, or by any board-approved course provider.
  3. A continuing education course must be disapproved by the board unless otherwise provided under this section. A continuing education course provider or a certificate holder shall request disapproval of continuing education coursework by submitting to the board a course outline, the instructor’s name, the length of the training, and an explanation of how the training relates to the construction and service of water wells.
  4. A certificate holder may request approval of education that was not preapproved by submitting to the board verification of attendance, a course outline, and an explanation of why preapproval was not obtained. The board shall determine on a case-by-case basis whether to approve education that was not preapproved.

Source:

S.L. 1999, ch. 392, § 2; 2003, ch. 373, § 2; 2017, ch. 199, § 49, effective April 29, 2019; 2019, ch. 365, § 3, effective March 29, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

CHAPTER 43-36 Professional Soil Classifiers

43-36-01. Definitions.

Unless the context or subject matter otherwise requires:

  1. “Board” means the state board of registration for professional soil classifiers hereinafter provided in this chapter.
  2. “Kind of soil” is a group of natural bodies that has a discrete combination of landscape, morphological, chemical, and physical properties.
  3. “Practice of soil classifying and practice of professional soil classifying” means any service or work the adequate performance of which requires education in the physical, chemical, biological, and soil sciences, training and experience in the application of the special knowledge of these sciences to soil classification, the soil classification by accepted principles and methods, investigation, evaluation, and consultation on the effect of measured, observed, and inferred soil properties upon the various uses, the preparation of soil descriptions, maps and reports and interpretive drawings, maps and reports of soil properties and the effect of soil properties upon the various uses, and the effect of the various uses upon kinds of soil, any of which embraces such service or work either public or private incidental to the practice of soil classifying.
  4. “Professional soil classifier” means a person who by reason of that person’s special knowledge of the physical, chemical, and biological sciences applicable to soils as natural bodies and of the methods and principles of soil classification as acquired by soils education and soil classification experience in the formation, morphology, description, and mapping of soils is qualified to practice soil classifying and who has been duly registered by the state board of registration for professional soil classifiers.
  5. “Responsible charge” means direct control and personal supervision of soil classification.
  6. “Soil” is all of the groups of natural bodies occupying the unconsolidated portion of the earth’s surface capable of supporting plant life and having properties due to the combined effect of climate and living organisms, as modified by topography and time, upon parent materials.
  7. “Soil classification” is plotting the boundaries, describing and evaluating the kinds of soil as to their behavior and response to management under the various uses.
  8. “Soil classifier” means a professional soil classifier as defined in subsection 4.
  9. “Soil classifier-in-training” means a person who complies with the requirements for education and character and who has passed an examination in the fundamental soil and related subjects as provided for in sections 43-36-10, 43-36-11, 43-36-12, and 43-36-13.

A person must be construed to practice or offer to practice soil classifying within the meaning and intent of this chapter who by verbal claim, sign, advertisement, letterhead, card, or use of some other title represents that the person is a soil classifier, but does not mean or include the practice of soil classifying by persons exempt under the provisions of section 43-36-24 nor the work ordinarily performed by persons who sample and test soil for fertility status or construction materials and engineering surveys and soundings to determine soil properties influencing the design and construction of engineering and architectural projects. Notwithstanding the foregoing provisions, a person may not be construed to practice soil classifying unless the person offers soil classifying services to or performs such soil classifying for the public.

Source:

S.L. 1973, ch. 361, § 1.

43-36-02. Board — Appointments — Terms.

A state board of registration for professional soil classifiers is hereby created whose duty it is to administer the provisions of this chapter. The board consists of three professional soil classifiers appointed by the governor and two members at large appointed by the governor. The members of the board must be appointed for five years, staggered so the term of one member expires June thirtieth of each year and so that the terms of the members at large do not expire in consecutive years. Each member of the board shall receive a certificate of that member’s appointment from the governor and shall file with the secretary of state a written oath and affirmation of the faithful discharge of the member’s official duties. On the expiration of the term of any member, the governor shall in the manner hereinbefore provided appoint for a term of five years a registered professional soil classifier or a member at large to take the place of the member whose term on said board is about to expire. A member may be reappointed. Each member shall hold office until a successor has been duly appointed and has qualified.

Source:

S.L. 1973, ch. 361, § 2; 1981, ch. 435, § 24.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-36-03. Board — Qualifications.

Each member of the board must be a citizen of the United States and a resident of this state.

Source:

S.L. 1973, ch. 361, § 3.

43-36-04. Board — Compensation and expenses.

Each member of the board is entitled to receive compensation at the rate of sixty-two dollars and fifty cents per day and reimbursement for expenses as provided by law for state officers, if attending board meetings or performing duties directed by the board.

Source:

S.L. 1973, ch. 361, § 4; 1999, ch. 393, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-36-05. Board — Removal of members — Vacancies.

The governor may remove any member of the board for misconduct, incompetency, neglect of duty, or for any sufficient cause in the manner prescribed by law for the removal of state officials. Vacancies in the membership of the board must be filled for the unexpired term by appointment by the governor as provided in section 43-36-02.

Source:

S.L. 1973, ch. 361, § 5.

Cross-References.

Removal of officers by governor, see N.D.C.C. ch. 44-11.

43-36-06. Board — Organization and meetings.

The board shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the board provide. The board shall elect or appoint annually the following officers: a chairman, a vice chairman, and a secretary. A quorum of the board consists of three members.

Source:

S.L. 1973, ch. 361, § 6.

43-36-07. Board — Powers.

The board has the power to administer this chapter under chapter 28-32 and:

  1. To adopt and amend all bylaws, rules of procedure, and regulations to administer and carry out the provisions of this chapter and for the conduct of its affairs and functions consistent with the constitution and laws of this state or this chapter which may be reasonably necessary for the proper performance of its duties and the regulation of its proceedings, meetings, records, examinations, and the conduct thereof, and to adopt and promulgate a code of ethics which is binding upon all persons registered under or subject to this chapter.
  2. To employ such clerks, technical experts, and attorneys as it may deem necessary or desirable to carry out the provisions of this chapter.
  3. To apply in the name of the state for relief by injunction without bond, to enforce the provisions of this chapter, or to restrain any violation thereof. In such proceedings it is not necessary to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the board are not personally liable under this proceeding.
  4. To negotiate and enter reciprocal agreements with similar agencies in other states; provided that a reciprocal agreement may not limit the board’s powers and duties regarding any application for registration as a professional soil classifier or for certification as a soil classifier-in-training or regarding the enforcement of this chapter or any rules adopted to implement this chapter.

Source:

S.L. 1973, ch. 361, § 7; 1999, ch. 393, § 2.

43-36-08. Receipts and disbursements.

The secretary of the board shall receive and account for all moneys derived under the provisions of this chapter and shall deposit and disburse the same in accordance with section 54-44-12. The secretary shall give a surety bond to the state in such sum as may be required by the laws of this state. The premium on said bond must be regarded as a proper and necessary expense of the board. The secretary shall receive such salary as the board shall determine. Under no circumstances may the total amount of warrants issued in payment of the expenses and compensation provided for in this chapter exceed the amount of moneys collected.

Source:

S.L. 1973, ch. 361, § 8.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-36-09. Records and reports.

The board shall:

  1. Keep a record of its proceedings and of all applications for registration which record must show the name, age, and last-known address of each applicant, the place of business of such applicant, the applicant’s education, experience and other qualifications, type of examination required, whether or not a certificate of registration was granted, whether or not the applicant was rejected, the date of the action of the board, and such other information as may be deemed necessary by the board which record of the board is prima facie evidence of the proceeding of the board and a transcript thereof duly certified by the secretary under seal is admissible as evidence with the same force and effect as if the original were produced.
  2. Annually as of January first submit to the governor a report of its transactions of the preceding year and shall transmit to the governor a complete statement of the receipts and expenditures of the board attested by affidavits of its chairman and its secretary.

Source:

S.L. 1973, ch. 361, § 9.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-36-10. General requirements for registration — Professional soil classifier.

To be eligible for registration as a professional soil classifier or certification as a soil classifier-in-training, an applicant must be of good character and reputation and shall submit a written application to the board containing such information as the board may require, together with three references, one of which must be from a professional soil classifier having personal knowledge of the applicant’s soil classifying experience; or in the case of an application for certification as a soil classifier-in-training, by three character references.

Source:

S.L. 1973, ch. 361, § 10; 2013, ch. 330, § 1.

43-36-10.1. Conviction not bar to registration — Exceptions.

Conviction of an offense does not disqualify a person from registration under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a professional soil classifier, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source:

S.L. 1977, ch. 130, § 59.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-36-11. Registration without examination — Reciprocity.

An applicant otherwise qualified must be admitted to registration as a professional soil classifier without examination upon payment of the required fees if:

  1. The applicant is of good character, has been a resident of the state for at least one year immediately preceding the date of application, was a practicing soil classifier on July 1, 1973, meets the requirements of this chapter, and has performed work of a character satisfactory to the board; or
  2. The applicant holds a certificate of registration in the practice of soil classifying issued by another state, the District of Columbia, a Canadian province, or a foreign country, in which the requirements are substantially similar to those of this state.

Source:

S.L. 1973, ch. 361, § 11; 1999, ch. 393, § 3.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

43-36-12. Registration with examination — Professional soil classifier.

An applicant otherwise qualified must be admitted to registration as a professional soil classifier if the applicant has successfully passed an examination in the principles and practice of soil classifying as prescribed by the board and has one of the following additional qualifications:

  1. Is a graduate of a soils curriculum approved by the board as satisfactory and with a specific record of an additional four years or more of experience of a grade and character which indicates to the board that the applicant is competent to practice soil classifying and who holds a valid soil classifier-in-training certificate.
  2. Is a person who has satisfactorily completed a soils curriculum not approved by the board and eight years or more of experience in soil classifying work of a character and grade which indicates to the board that the applicant is competent to practice soil classifying.
  3. Is a person who holds a valid soil classifier-in-training certificate with a specific record of four years or more of experience as a soil classifier-in-training of a grade and character which indicates to the board that the applicant is competent to practice soil classifying.
  4. Is a person with experience of not less than four years of soil classification research or as a teacher of soils in a college or university offering an approved soils curriculum of four years or more, and a minimum of two years of soil classifying experience of a character and grade which indicates to the board that the applicant is competent to practice soil classifying.

Source:

S.L. 1973, ch. 361, § 12.

43-36-13. Qualifications of soil classifier-in-training.

Unless otherwise qualified, a person must be admitted to certification as a soil classifier-in-training, which certification is valid for four years, if the person is:

  1. A graduate of a soils curriculum approved by the board and has passed an examination in the fundamentals of soil classification; or
  2. An applicant who has completed a soils curriculum not approved by the board and who has a specific record of four years of soil classification experience of a grade and character satisfactory to the board and who passes an examination in the fundamentals of soil classification.

Source:

S.L. 1973, ch. 361, § 13.

43-36-14. Application for registration.

Application for registration as a professional soil classifier and for certification as a soil classifier-in-training must be on a form prescribed and furnished by the board, must contain statements made under oath showing the applicant’s education, a detailed summary of the applicant’s experience, and references as required by this chapter and must be accompanied by an application fee established by the board of not less than fifty nor more than two hundred dollars. If the national test is administered, the amount may not exceed five hundred dollars.

Source:

S.L. 1973, ch. 361, § 14; 2003, ch. 374, § 1.

43-36-15. Registration fees.

  1. The board shall establish registration fees provided:
    1. The registration fee for in-state professional soil classifiers must be at least fifty dollars but not more than three hundred dollars.
    2. The registration fee for in-state soil classifier-in-training certification or enrollment must be at least twenty-five dollars but not more than one hundred dollars.
    3. The registration fee for out-of-state professional soil classifiers must be at least one hundred dollars but not more than three hundred dollars.
  2. If the board denies the issuance of a certificate to an applicant, the board shall retain the application fee.

Source:

S.L. 1973, ch. 361, § 15; 1999, ch. 393, § 4; 2003, ch. 374, § 2.

43-36-16. Examinations.

Examinations must be held at such times and places as the board determines. Examinations required on fundamental soil subjects may be taken at any time prescribed by the board. The final examinations may not be taken until the applicant has completed a period of soil classifying experience as provided in this chapter. The passing grade on any examination may not be less than seventy percent. A candidate failing one examination may apply for re-examination, which may be granted upon payment of a fee established by the board of not less than twenty-five nor more than fifty dollars. Any candidate for registration having an average grade of less than fifty percent may not apply for re-examination for a period of one year from the date of such examination.

Source:

S.L. 1973, ch. 361, § 16; 2003, ch. 374, § 3.

43-36-17. Certificates.

The board shall issue a certificate of registration upon payment of the registration fee as provided for in this chapter to any applicant who in the opinion of the board has met the requirements of this chapter. Enrollment cards must be issued to those who qualify as soil classifiers-in-training. Certificates of registration must carry the designation “professional soil classifier”, must show the full name of the registrant without any titles, must be numbered, and must be signed by the chairman and the secretary under the seal of the board. The issuance of a certificate of registration by the board is prima facie evidence that the person named therein is entitled to all the rights and privileges of a professional soil classifier during the term for which the certificate is valid providing the certificate has not been revoked or suspended.

Source:

S.L. 1973, ch. 361, § 17.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-36-18. Expirations and renewals.

Certificates of registration expire on the last day of the month of December following their issuance and become invalid after that date unless renewed. It is the duty of the secretary of the board to notify every person registered under this chapter of the date of the expiration of said certificate of registration and the amount of the fee required for its renewal. Such notice must be mailed to the registrant at the registrant’s last-known address at least one month in advance of the expiration of said certificate. Renewal may be effected at any time prior to or during the month of December by the payment of a fee established by the board not to exceed the fees established for registration. Renewal of an expired certificate may be effected under rules promulgated by the board regarding requirements for re-examination and penalty fees.

Source:

S.L. 1973, ch. 361, § 18.

43-36-19. Reissuance of certificates.

A new certificate of registration to replace any certificate lost, destroyed, or mutilated may be issued subject to the rules of the board. A reasonable charge must be made for such issuance.

Source:

S.L. 1973, ch. 361, § 19.

43-36-20. Code of ethics.

The board shall cause to have prepared and shall adopt a code of ethics a copy of which must be delivered to every registrant and applicant for registration under this chapter. Such delivery constitutes due notice to all registrants. The board may revise and amend this code of ethics from time to time and shall forthwith notify each registrant in writing of such revisions and amendments. Such code of ethics when adopted applies to all certificate holders.

Source:

S.L. 1973, ch. 361, § 20.

43-36-21. Disciplinary action — Revocations, suspensions, or reprimands.

The board has the power to suspend, refuse to renew or revoke the certificate of registration of, or reprimand any registrant who is guilty of any of the following:

  1. The practice of fraud or deceit in obtaining a certificate of registration.
  2. Any gross negligence, incompetence, or misconduct in the practice of soil classifying.
  3. Any offense determined by the board to have a direct bearing upon a registrant’s ability to serve the public as a professional soil classifier, or the board determines, following conviction of any offense, that a registrant is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. Violation of the code of ethics adopted and promulgated by the board.

Source:

S.L. 1973, ch. 361, § 21; 1977, ch. 130, § 60.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-36-22. Disciplinary action — Procedure.

Any person may prefer charges of fraud, deceit, gross negligence, incompetence, misconduct, or violation of the code of ethics against any individual registrant. Such charges must be in writing and must be sworn to by the person or persons making them and must be filed with the secretary of the board. All charges unless dismissed by the board as unfounded or trivial must be heard by the board within three months after the date on which they have been preferred. The time and place for said hearing must be fixed by the board and a copy of the charges together with a notice of the time and place of hearing must be served upon the accused either personally or sent by registered or certified mail to the last-known address of such individual registrant at least thirty days before the date fixed for hearing. At any hearing the accused registrant has the right to appear in person or by counsel, or both, to cross-examine witnesses appearing against the accused, and to produce evidence and witnesses in defense of the accused. If the accused person fails or refuses to appear, the board may proceed to hear and determine the validity of the charges. If after such hearing a majority of the board votes in favor of sustaining the charges, the board shall make findings of fact, draw its conclusions and issue its order therein and serve the same upon the accused. In said order the board may reprimand, suspend, refuse to renew, or revoke the accused individual’s certificate of registration. Any person who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking that person’s certificate of registration may appeal therefrom to the district court under the procedures provided by chapter 28-32.

Source:

S.L. 1973, ch. 361, § 22.

43-36-23. Right to practice.

No person may practice or offer to practice professional soil classifying as defined by this chapter unless the person is duly registered to practice under or exempt from the provisions of this chapter.

Source:

S.L. 1973, ch. 361, § 23.

43-36-24. Exemptions.

This chapter shall not be construed to prevent or affect:

  1. The practice or offer to practice soil classifying by a person not a resident or having no established place of business in this state provided such person is legally qualified by the provisions of this chapter to practice soil classifying as defined herein in that person’s own state which extends similar privileges to persons registered under this chapter provided such person shall make application accompanied by the appropriate application fee to the board in writing prior to that person’s practicing or offering to practice soil classifying, may be granted a temporary permit for a definite period of time not to exceed one year to do a specific job provided, however, no right to practice soil classifying shall accrue to such applicant with respect to any other work not set forth in said permit.
  2. The work of an employee or a subordinate of a person holding a certificate of registration under this chapter or an employee of a person practicing lawfully under subsection 1, provided such work does not include final soil classifying decisions and is done under the direct supervision of and verified by a person holding a certificate of registration under this chapter or a person practicing lawfully under subsection 1.
  3. The practice of any other legally recognized profession or trade.
  4. The practice of soil classifying by any person regularly employed to perform soil classifying services solely for that person’s employer or for a subsidiary or affiliated corporation or limited liability company of that person’s employer, providing the soil classifying performed is in connection with the property, products, or services of that person’s employer.

Source:

S.L. 1973, ch. 361, § 24; 1993, ch. 54, § 106.

43-36-25. Violation — Penalty.

Any person who practices or offers to practice professional soil classifying in this state without being registered in accordance with the provisions of this chapter, or any person using or employing the words “soil classifier” or “professional soil classifier” or any modification or derivative thereof in its name or form of business or activity except as authorized in this chapter, or any person presenting the certificate of registration of another, or any person who falsely impersonates any other registrant of like or different name, or any person who attempts to use an expired or revoked or nonexistent certificate of registration, or who practices or offers to practice when not qualified, or any person who falsely claims that that person is registered under this chapter, or any person who violates any of the other provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1973, ch. 361, § 25; 1975, ch. 106, § 509.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-37 Audiologists and Speech-Language Pathologists

43-37-01. Policy. [Repealed]

Source:

S.L. 1975, ch. 414, § 1; 1983, ch. 489, § 1; repealed by 2017, ch. 300, § 12, effective January 1, 2018.

43-37-02. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Audiologist” means an individual licensed by the board to practice audiology.
  2. “Audiology” means the application of principles, methods, and procedures of measurement, testing, evaluation, prediction, consultation, counseling, instruction, habilitation, or rehabilitation related to hearing and disorders of hearing including vestibular testing, for the purpose of evaluating, identifying, preventing, ameliorating, or modifying such disorders and conditions in individuals or groups of individuals.
  3. “Board” means the state board of examiners on audiology and speech-language pathology.
  4. “Habilitation” and “rehabilitation” include hearing aid evaluation and recommendation, auditory training, and speech reading.
  5. “Licensee” means an audiologist, speech-language pathologist, or speech-language pathology assistant.
  6. “Speech-language pathologist” means an individual licensed by the board to practice speech-language pathology.
  7. “Speech-language pathology” means the application of principles, methods, and procedures for measurement, testing, evaluation, identification, prediction, counseling, or instruction related to the development and disorders of speech, language, voice, cognitive-communication, swallowing, and augmentative alternative communication for the purpose of identifying, evaluating, preventing, managing, habilitating or rehabilitating, ameliorating, or modifying such disorders and conditions in individuals or groups of individuals.
  8. “Speech-language pathology assistant” means an individual licensed by the board to assist in the practice of speech-language pathology.

Source:

S.L. 1975, ch. 414, § 2; 1983, ch. 489, § 2; 2011, ch. 326, § 1; 2017, ch. 300, § 1, effective January 1, 2018.

43-37-03. License required — Exceptions.

  1. A person may not practice audiology or speech-language pathology, assist in the practice of speech-language pathology, or represent the person is an audiologist, speech-language pathologist, or speech-language pathology assistant in this state unless licensed in accordance with this chapter.
  2. A person may not hold out to the public by any title, abbreviation, or description of services incorporating the words audiologist, hearing clinician, hearing therapist, speech-language pathologist, speech-language pathologist assistant, or any similar title, abbreviation, or description of service unless licensed in accordance with this chapter.
  3. This chapter does not prevent or restrict:
    1. A physician from engaging in the practice of medicine in this state.
    2. A hearing aid specialist from engaging in testing of hearing and other practices and procedures used solely for the fitting and selling of hearing aids in this state as provided in chapter 43-33.
    3. Any person licensed in this state by any other law from engaging in the profession or occupation for which licensed.
    4. An individual who holds a valid certificate or credential as a speech-language pathologist, speech-language pathology paraprofessional, or teacher of the hearing impaired which is issued by the department of public instruction or the education standards and practices board, or an individual employed as an audiologist or speech-language pathologist by the government of the United States, if that individual performs speech-language pathology or audiology services solely within the confines or under the jurisdiction of the governmental or state educational organization by which employed. However, without obtaining a license under this chapter, that individual may consult with or disseminate that individual’s research findings and other scientific information to individuals practicing speech-language pathology or audiology outside the jurisdiction of the organization by which that individual is employed.
    5. The activities and services of an individual pursuing a course of study leading to a degree in speech-language pathology, communication disorders, or audiology at a college or university if the activities and services constitute a part of a supervised course of study and that individual is designated an audiology, communication disorder, or speech-language pathology intern, an audiology, communication disorder, or speech-language pathology trainee, or by any other title clearly indicating the training status appropriate to the level of training.
    6. The performance of audiology or speech-language pathology services in this state by an individual not a resident of this state who is not licensed under this chapter if the services are performed for no more than five days in any calendar year and in cooperation with an audiologist or speech-language pathologist.
    7. An individual holding a valid credential as a teacher of the hearing impaired issued by the council on education of the deaf from engaging in the practice of habilitation and rehabilitation of individuals who are hearing impaired.
    8. An individual possessing a valid certificate as a certified audiometric technician recognized by the board as meeting council for accreditation in occupational hearing conservation standards appendix II or its equivalent from providing audiometric testing if such service is performed in cooperation with either an audiologist or a licensed physician.
    9. An individual providing hearing screening services as part of a public service project solely intended for the purposes of identification of hearing impairment if such services are performed in cooperation with an audiologist who is directly responsible for:
      1. The training of this individual;
      2. The administration of hearing screening procedures;
      3. The interpretation of testing results; and
      4. Assuring appropriate referral and followup of the identified population.

Source:

S.L. 1975, ch. 414, § 3; 1983, ch. 489, § 3; 2003, ch. 372, § 12; 2011, ch. 326, § 2; 2017, ch. 300, § 2, effective January 1, 2018.

43-37-04. Eligibility for licensure.

To be eligible for licensure by the board as an audiologist, speech-language pathologist, or speech-language pathology assistant, an applicant shall meet all the following requirements:

  1. Be of good moral character.
  2. Possess an appropriate degree from an educational institution recognized by the board.
    1. An applicant for a speech-language pathologist license must possess at least a master’s degree in speech-language pathology.
    2. An applicant for an audiologist license must possess at least a doctorate degree in audiology.
    3. An applicant for a speech-language pathology assistant license must possess at least a bachelor’s degree in speech-language pathology or communication disorders.
  3. Submit evidence showing qualifications prescribed by rules of the board.
  4. Within one year of application an applicant for licensure as a speech-language pathologist, speech-language pathology assistant, or audiologist must pass any applicable examination prescribed by rules adopted by the board.
  5. Pay the prescribed fee.

Source:

S.L. 1975, ch. 414, § 4; 1983, ch. 489, § 4; 2011, ch. 326, § 3; 2013, ch. 331, § 1; 2017, ch. 300, § 3, effective January 1, 2018.

43-37-04.1. Licensing of out-of-state practitioners.

  1. The board may adopt rules establishing licensure requirements for applicants who hold a current license in good standing to practice as an audiologist, speech-language pathologist, or speech-language pathology assistant in a state or jurisdiction other than this state and who are not the subject of a pending disciplinary action in any state or jurisdiction.
  2. Notwithstanding section 43-37-04, as it relates to the licensure eligibility of an out-of-state audiologist, speech-language pathologist, or speech-language pathology assistant, the board’s rules may allow for:
    1. Waiver of the examination requirement if the applicant meets the requirements established by the board.
    2. Consideration of education and experience in order to meet the education requirements.

Source:

S.L. 2013, ch. 331, § 2; 2017, ch. 300, § 4, effective January 1, 2018.

43-37-04.2. Speech-language pathology assistant — Supervising speech-language pathologist.

A speech-language pathology assistant is licensed by the board to work under the supervision of a speech-language pathologist. A speech-language pathology assistant’s scope of practice is limited to tasks the supervising speech-language pathologist delegates. The supervising speech-language pathologist shall assess the speech-language pathology assistant’s training and skills in determining which tasks may be delegated. The supervising speech-language pathologist shall limit the delegated tasks to specific components of a speech and language program as set forth in treatment plans developed by the supervising speech-language pathologist.

Source:

S.L. 2017, ch. 300, § 5, effective January 1, 2018.

43-37-05. Board of examiners on audiology and speech-language pathology.

  1. The board of examiners on audiology and speech-language pathology is hereby established.
  2. The board is composed of eight members appointed by the governor. Appointees must be residents of this state for at least one year immediately preceding appointment and, except for the consumer member, must be engaged in rendering services to the public, teaching, or research in audiology or speech-language pathology for at least three years preceding appointment. Two board members must be audiologists, four must be speech-language pathologists, one must be an otolaryngologist, and one must be a consumer.
  3. Each board member shall hold office for three years and until a successor is appointed and qualified. The terms must be arranged so no more than four terms expire on July first of each year. The governor shall fill vacancies for an unexpired term. An individual may not serve more than two successive terms.
  4. The board shall meet at least twice each calendar year. Special meetings may be convened at the call of the chairman or at the written request of any three board members.
  5. Five members of the board constitute a quorum. When an application for licensure is received, one member of the quorum must be engaged in the profession for which a license is sought. In the case of an application for licensure as a speech-language pathology assistant, a speech-language pathologist must be a member of the quorum.

Source:

S.L. 1975, ch. 414, § 5; 1981, ch. 435, § 25; 1983, ch. 489, § 5; 2011, ch. 326, § 4; 2013, ch. 331, § 3; 2017, ch. 300, § 6, effective January 1, 2018.

43-37-06. Powers and duties of the board.

The board may hire employees to assist the board in carrying out the board’s duties under this chapter and may adopt rules for:

  1. Annual licensure.
  2. Licensing fees not to exceed one hundred dollars per year.
  3. Ethical standards of conduct.
  4. Continuing competency and education.
  5. License suspension or revocation.
  6. Carrying out the purposes of this chapter.

Source:

S.L. 1975, ch. 414, § 6; 1983, ch. 489, § 6; 2011, ch. 326, § 5; 2017, ch. 300, § 7, effective January 1, 2018.

43-37-07. Administrative provisions. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-08. Compensation of board members.

Board members are entitled to receive compensation per day in the amount provided for members of the legislative management under section 54-35-10 and are entitled to be reimbursed for mileage and travel expenses necessarily incurred in the conduct of board business at the same rate as state employees.

Source:

S.L. 1975, ch. 414, § 8; 1983, ch. 489, § 7; 2011, ch. 326, § 6; 2017, ch. 300, § 8, effective January 1, 2018.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expense of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-37-09. License examination.

  1. A separate examination is required for licensure in speech-language pathology or audiology. An individual may be licensed in both areas if that individual meets the respective qualifications of each area.
  2. The speech-language pathology examination and the audiology examination are examinations offered by organizations approved by the board. The board shall maintain proof all licensees passed the required examination. The examination is not required for renewal of licenses, except as required by board rules.

Source:

S.L. 1975, ch. 414, § 9; 1983, ch. 489, § 8; 2011, ch. 326, § 7; 2017, ch. 300, § 9, effective January 1, 2018.

43-37-10. Examination for license. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-11. Waiver of examination or parts thereon. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-12. Issuance of license. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-13. Disciplinary actions.

  1. The board may refuse to issue or renew a license, suspend or revoke a license, or take other disciplinary action against a licensee if the licensee or applicant for license engaged in unprofessional conduct. Unprofessional conduct includes:
    1. Obtaining a license by means of fraud, misrepresentation, or concealment of material facts.
    2. Engaging in unprofessional conduct, as defined by the rules adopted by the board, or violating the code of ethics adopted by the board by rule.
    3. Being convicted of an offense if the acts for which that individual is convicted are determined by the board to have a direct bearing on that applicant’s or licensee’s ability to serve the public in the capacity of a speech-language pathologist, speech-language pathology assistant, or audiologist; or the board determines that applicant or licensee, following conviction of any other offense, is not sufficiently rehabilitated under section 12.1-33-02.1.
    4. Violating an order or rule adopted by the board.
    5. Violating this chapter.
    6. Receiving remuneration of any kind from the sale of any type of hearing aid, unless licensed under chapter 43-33.
  2. One year from the date of revocation of a license, the licensee may make application to the board for reinstatement. The board may accept or reject an application for reinstatement or may require an examination for reinstatement.

Source:

S.L. 1975, ch. 414, § 13; 1977, ch. 130, § 61; 1983, ch. 489, § 9; 2011, ch. 326, § 8; 2017, ch. 300, § 10, effective January 1, 2018.

43-37-14. Renewal of license. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-15. Fees. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-16. Notice. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-17. Continuing professional education. [Repealed]

Repealed by S.L. 1983, ch. 489, § 11.

43-37-18. Penalty.

Any person that violates this chapter is guilty of a class A misdemeanor.

Source:

S.L. 1975, ch. 414, § 18; 1983, ch. 489, § 10; 2017, ch. 300, § 11, effective January 1, 2018.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-38 Electrologists and Electronic Hair Removal Technicians

43-38-01. Definitions.

In this chapter unless the context or subject matter otherwise requires:

  1. “Electrologist” means a qualified and licensed person proficient in the removal of hair by means of the electric needle.
  2. “Electrolysis” means the removal of superfluous hair by use of the electric needle or electronic process.
  3. “Electronic hair removal technician” means a qualified and licensed person proficient in the removal of hair by means of an electronic process other than the electric needle.
  4. “State health council” means the state health council as defined in chapter 23-01.

Source:

S.L. 1979, ch. 476, § 1.

43-38-02. Electrologist and electronic hair removal technician licensure — Duties of state health council.

The state health council shall issue an electrologist’s or electronic hair removal technician’s license. The annual license must be determined annually by the council but may not exceed fifty dollars for new licenses and not exceed twenty-five dollars for relicensure.

Source:

S.L. 1979, ch. 476, § 2.

43-38-03. Rulemaking authority of state health council. [Effective through August 31, 2022]

The state health council shall establish standards, rules, and regulations which are found necessary for the maintenance of public health, including sanitation and disease control. The council has the following powers:

  1. To establish minimum age levels.
  2. To establish education and training levels for electrologists and electronic hair removal technicians.
  3. To issue, deny, suspend, or revoke licenses.
  4. To develop application and licensure forms.
  5. To delegate the administration of the program to the state health officer, subject to such provisions as the council may make for appeal to it.
  6. To promulgate such requirements as may be found necessary to carry out the intent of this chapter.

All electrologists and electronic hair removal technicians practicing in North Dakota prior to July 1, 1979, may, without examination, be issued a license by the council upon proof, satisfactory to the council, of having met the qualifications.

Source:

S.L. 1979, ch. 476, § 3.

43-38-03. Rulemaking authority of department of health and human services. [Effective September 1, 2022]

The department of health and human services shall establish standards, rules, and regulations that are found necessary for the maintenance of public health, including sanitation and disease control. The department of health and human services has the following powers:

  1. To establish minimum age levels.
  2. To establish education and training levels for electrologists and electronic hair removal technicians.
  3. To issue, deny, suspend, or revoke licenses.
  4. To develop application and licensure forms.
  5. To delegate the administration of the program to the state health officer, subject to such provisions as the council may make for appeal to it.
  6. To promulgate such requirements as may be found necessary to carry out the intent of this chapter.

All electrologists and electronic hair removal technicians practicing in North Dakota prior to July 1, 1979, may, without examination, be issued a license by the department of health and human services upon proof, satisfactory to the department, of having met the qualifications.

Source:

S.L. 1979, ch. 476, § 3; 2021, ch. 352, § 366, effective September 1, 2022.

43-38-04. Penalty.

Any person who holds out as an electrologist or an electronic hair removal technician without having met the requirements and without an annual license or violates any of the provisions of this chapter or rules and regulations promulgated hereunder is guilty of an infraction.

Source:

S.L. 1979, ch. 476, § 4.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-39 Athletic Trainers

43-39-01. Definitions.

  1. “Athletic trainer” means an individual with specific qualifications set forth in section 43-39-05, who is providing athletic training.
  2. “Athletic training” means doing any of the following under the guidance of a physician:
    1. Preventing, recognizing, and evaluating injuries and illnesses sustained while participating in physical activity;
    2. Managing and administering the initial treatment of injuries or illnesses sustained while participating in physical activity;
    3. Giving emergency care or first aid for an injury or illness sustained while participating in physical activity;
    4. Under verbal, standing, or written orders, except in the case of providing services in a clinical setting which requires written orders, rehabilitating injuries or illnesses sustained while participating in physical activity;
    5. Under verbal, standing, or written orders, except in the case of providing services in a clinical setting which requires written orders, rehabilitating and physically reconditioning injuries or illnesses that impede or prevent an individual from returning to participating in physical activity, if the individual recently participated in, and intends to return to participation in, physical activity;
    6. Establishing or administering risk management, conditioning, and injury prevention programs;
    7. Providing injury screening or physician extender services; or
    8. Referring a patient to an appropriate health care provider as needed.
  3. “Board” means the North Dakota board of athletic trainers established in section 43-39-02.
  4. “Physical activity” means any moderate or vigorous activity that requires physical strength, agility, range of motion, repetitive motion, speed, or stamina during participation in exercise, sports, games, recreation, performance arts, stretching, wellness, fitness, military, industrial, or public safety activities.
  5. “Physician” means an individual licensed as a physician under chapter 43-17.

Source:

S.L. 1983, ch. 490, § 2; 1993, ch. 437, § 1; 2015, ch. 306, § 1, effective August 1, 2015.

Note.

Section 1 of chapter 490, S.L. 1983, provides:

“This Act shall be known and may be cited as the North Dakota Athletic Trainers Act”.

Collateral References.

Medical malpractice liability of sports medicine care providers for injury to, or death of, athlete, 33 A.L.R.5th 619.

Law Reviews.

Negligence and Secondary School Sports Injuries in North Dakota: Who Bears the Legal Liability?, 62 N.D. L. Rev. 455 (1986).

43-39-02. Board of athletic trainers.

  1. The North Dakota board of athletic trainers shall consist of five members, comprising one licensed physician, one layperson, and three athletic trainers. Each member must be appointed by the governor. The members, other than the layperson, must be appointed from lists submitted to the governor by the North Dakota athletic trainers association for those members who are athletic trainers and from the North Dakota medical association for the member who is a physician, for terms as provided in this section. Each member of the board, except for the layperson, must be licensed in the member’s profession in this state and a resident of this state, must have not less than two years’ experience as a physician or athletic trainer immediately preceding appointment, and must be actively employed in the member’s profession during the member’s tenure on the board. The layperson may not be licensed in any health care field.
  2. Members must be appointed to serve four-year staggered terms to commence on July first in the respective years of appointment and shall continue to serve until their successors are appointed. If a vacancy occurs during a term, the governor shall appoint a successor for the remainder of the unexpired term. No member may serve for more than two successive four-year terms. On the initial board, one physician and one athletic trainer must be appointed for a one-year term; the laymember and one athletic trainer must be appointed for a two-year term; and one athletic trainer must be appointed for a three-year term. Thereafter, their successors must be appointed for four-year terms.
  3. The board each year shall elect one of its members as chairman and one as secretary-treasurer to the board. The board may make rules, in accordance with chapter 28-32 and not inconsistent with law, which may be necessary for the performance of its duties. The board may prescribe reasonable fees for application and examinations and for certificates of licensure. License fees must be used for the purpose of paying the costs of per diem compensation and travel reimbursement to the board. In addition, fees and other moneys collected and received by the board must be used for the purpose of implementing this chapter and may be used for continuing education purposes. The financial records of the board must be audited once every two years. The audit is to be paid for out of the funds of the board.
  4. The board shall meet at least once each year. Additional meetings may be held on the call of the chairman or at the written request of any three members of the board. Three members constitute a quorum of the board. No action by the board or its members has any effect unless a quorum of the board is present.
  5. The athletic trainer members of the initial board are not required to be licensed for the first one hundred eighty days of their membership on the board.

Source:

S.L. 1983, ch. 490, § 3; 1991, ch. 475, § 1.

43-39-03. Records.

The board shall keep a record of its proceedings under this chapter and a record of all persons licensed by the board. The record must show the name of every living licensee and the licensee’s last-known place of employment and last-known place of residence and the date and number of the licensee’s license certificate. Any interested person in the state is entitled to a printed copy of that record on application to the board and payment of such reasonable charge as may be fixed by the board based on the cost involved.

Source:

S.L. 1983, ch. 490, § 4.

43-39-04. Unlawful practice.

  1. A person may not practice athletic training or hold that person out as being an athletic trainer in this state unless that person is an individual licensed in accordance with this chapter.
  2. A person may not consult, teach, or supervise or hold that person out as being able to consult, teach, or supervise athletic training curricular courses in this state unless that person is an individual licensed in accordance with this chapter or chapter 43-17 or possesses a degree in a health-related field.
  3. A person may not represent that person as being a licensed athletic trainer or use in connection with that person’s name any letters, words, or insignia indicating or implying that the person is a licensed athletic trainer unless that person is an individual licensed in accordance with this chapter.

Source:

S.L. 1983, ch. 490, § 10; 1993, ch. 437, § 2; 2015, ch. 306, § 2, effective August 1, 2015.

43-39-05. Qualifications.

To be eligible for an athletic trainer license, an applicant must meet all the requirements of certification established by the board of certification, incorporated.

Source:

S.L. 1983, ch. 490, § 5; 1993, ch. 437, § 3; 2013, ch. 332, § 1.

43-39-06. Issuance of licenses.

  1. An applicant for an athletic trainer license must submit an application to the board on forms prescribed by the board and submit the application fee required.
  2. An applicant is entitled to an athletic trainer license if the applicant possesses the qualifications set forth in this chapter, satisfactorily meets approval by the board of athletic trainers, pays the license fee, and has not committed an act which constitutes grounds for denial of a license.

Source:

S.L. 1983, ch. 490, § 8.

43-39-07. Initial license. [Repealed]

Repealed by S.L. 2013, ch. 332, § 6.

43-39-08. Examination required.

All license applicants must have previously passed the board of certification, incorporated, examination.

Source:

S.L. 1983, ch. 490, § 6; 2013, ch. 332, § 2.

43-39-09. License renewal.

  1. A license issued pursuant to this chapter expires one year from the date of issuance.
  2. Licenses must be renewed according to the procedures established by the board.
  3. A previously licensed person who has requested license renewal must have active status from the board of certification, incorporated.

Source:

S.L. 1983, ch. 490, § 9; 2013, ch. 332, § 3.

43-39-10. Grounds for denial, suspension, or revocation of license — Application of chapter.

  1. The board may refuse to issue a license to an applicant or may suspend or revoke the license of a licensee if the applicant or licensee:
    1. Has been convicted of a felony or misdemeanor involving moral turpitude, the record of a conviction being conclusive evidence of conviction.
    2. Uses alcohol or narcotic drugs to the extent that the use affects the person’s professional competency.
    3. Has obtained or attempted to obtain a license by fraud, deceit, or material misrepresentation.
    4. Is guilty of treating or undertaking to treat an individual’s injury or illness, except as authorized pursuant to this chapter, or undertaking to practice independent of the guidance or rehabilitation order of a licensed physician, or is guilty of any act derogatory to the dignity and morals of the profession of athletic training.
  2. Nothing in this chapter shall be construed to authorize the practice of medicine by any person. The provisions of this chapter do not apply to physicians licensed by the North Dakota board of medicine; to dentists, duly qualified and registered under the laws of this state who confine their practice strictly to dentistry; to licensed optometrists who confine their practice strictly to optometry as defined by law; to licensed chiropractors who confine their practice strictly to chiropractic as defined by law; to occupational therapists who confine their practice to occupational therapy; to nurses who practice nursing only; to duly licensed chiropodists or podiatrists who confine their practice strictly to chiropody or podiatry as defined by law; to registered physical therapists; to massage therapists in their particular sphere of labor; nor to commissioned or contract physicians or physical therapists or physical therapists’ assistants in the United States army, navy, air force, marine corps, and public health and marine health service.
  3. The provisions of this chapter shall not apply to persons coming into this state for a specific athletic event or series of athletic events with an individual or group not based in this state.
  4. Nothing in this chapter shall be construed to prevent schools, YMCA organizations, athletic clubs, and similar organizations from furnishing athletic training services to their students, players, or members.

Source:

S.L. 1983, ch. 490, § 7; 1993, ch. 437, § 4; 2013, ch. 332, § 4; 2015, ch. 297, § 3, effective August 1, 2015; 2015, ch. 306, § 35, effective August 1, 2015.

43-39-11. Penalty.

Any person practicing as an athletic trainer without a license as required by this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1983, ch. 490, § 12; 2013, ch. 332, § 5.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-40 Occupational Therapists

43-40-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the board of occupational therapy practice.
  2. “Occupational therapist” means a person licensed to practice occupational therapy under this chapter.
  3. “Occupational therapy aide” means an unlicensed person who assists in the practice of occupational therapy under the direct supervision of an occupational therapist or occupational therapy assistant in accordance with rules adopted by the board.
  4. “Occupational therapy assistant” means a person licensed to assist in the practice of occupational therapy, under this chapter, who works under the supervision of an occupational therapist.
  5. “Occupational therapy practice” means the use of occupation and purposeful activity or intervention designed to achieve functional outcomes that promote health, prevent injury or disability, and which develop, improve, sustain, or restore the highest possible level of independence of any individual who has an injury, illness, cognitive impairment, psychosocial dysfunction, mental illness, developmental or learning disability, physical disability or other disorder or condition, and occupational therapy education. Occupational therapy encompasses evaluation, treatment, consultation, research, and education. Occupational therapy practice includes evaluation by skilled observation, administration, and interpretation of standardized and nonstandardized tests and measurements. The occupational therapy practitioner designs and implements interventions directed toward developing, improving, sustaining, and restoring sensorimotor, neuromuscular, emotional, cognitive, or psychosocial performance components. Interventions include activities that contribute to optimal occupational performance including self-care; daily living skills; skills essential for productivity, functional communication and mobility; positioning; social integration; cognitive mechanisms; enhancing play and leisure skills; and the design, provision, and training in the use of assistive technology, devices, orthotics, or prosthetics or environmental adaptations to accommodate for loss of occupational performance. Therapy may be provided individually or in groups to prevent secondary conditions, promote community integration, and support the individual’s health and well-being within the social and cultural contexts of the individual’s natural environment.
  6. “Occupational therapy student” is a person enrolled in an accredited occupational therapy education program.

Source:

S.L. 1983, ch. 491, § 1; 1999, ch. 394, § 1.

43-40-02. License required — Title — Abbreviation.

A person may not practice occupational therapy or hold out as an occupational therapist, or as being able to practice occupational therapy, or to render occupational therapy services in this state unless that person is licensed under this chapter. Only individuals may be licensed under this chapter. An individual licensed under this chapter as an occupational therapist may use the title “occupational therapist” and the abbreviation “OT/L” or other designation approved by the board. An individual licensed under this chapter as an occupational therapy assistant may use the title “occupational therapy assistant” and the abbreviation “OTA/L” or other designation approved by the board. No other individual may use these names or abbreviations.

Source:

S.L. 1983, ch. 491, § 2; 1999, ch. 394, § 2.

43-40-03. Persons and practices not affected by chapter.

This chapter does not prevent or restrict the practice, services, or activities of:

  1. Services by a person licensed by the state and working within the standards and ethics of that person’s profession, if that person does not represent to the public that the person is an occupational therapist or occupational therapy assistant.
  2. Any person employed as an occupational therapist or occupational therapy assistant by the United States or any agency of it, if the person provides occupational therapy solely under the direction or control of the organization by which employed.
  3. Any person performing occupational therapy consultation, continuing education, inservice, or preservice training in this state, if these services are performed for no more than thirty days in a calendar year, if:
    1. The person is licensed or registered under the law of another state which has regulatory requirements at least as stringent as the requirements of this chapter; or
    2. The person meets the requirements for certification as an occupational therapist registered or a certified occupational therapy assistant, established by a national occupational therapy certifying agency approved by the board.

Source:

S.L. 1983, ch. 491, § 3; 1999, ch. 394, § 3.

43-40-03.1. Occupational therapy students — Occupational therapy aides.

  1. A person pursuing a supervised course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program may perform occupational therapy services if the services are a part of the student’s supervised course of study, provided that the student is designated by a title that clearly indicates the student’s status as a student or trainee.
  2. Occupational therapy aides may assist in the practice of occupational therapy only under the direct supervision of an occupational therapist or occupational therapy assistant and in accordance with rules adopted by the board.

Source:

S.L. 1999, ch. 394, § 13.

43-40-04. Board of occupational therapy practice — Appointment — Meetings.

  1. There is established a board of occupational therapy practice. The board shall consist of five members appointed by the governor, all of whom must be residents of this state. The occupational therapy practitioners appointed must have been engaged in rendering occupational therapy services to the public, teaching, or research in occupational therapy for at least three years immediately preceding their appointments. Three board members must be licensed occupational therapists. One member must be a licensed occupational therapy assistant. One member must represent the public with an interest in the rights of the consumers of health services.
  2. Appointments must be for three-year terms, but no person may be appointed to serve more than two consecutive terms. Terms begin on the first day of the calendar year and end on the last day of the calendar year or until successors are appointed.
  3. If a vacancy in one of the positions exists, the governor shall appoint, as soon as practicable, a person to the unexpired term.
  4. The board shall meet during the first month of each calendar year to select a chairman and for other purposes. At least one additional meeting must be held before the end of each calendar year. Other meetings may be convened at the call of the chairman or the written request of any two board members.
  5. Members of the board may receive no compensation for their services, but are entitled to reasonable travel and other expenses incurred in the execution of their powers and duties, as set by the board.

Source:

S.L. 1983, ch. 491, § 4; 1999, ch. 394, § 4.

43-40-05. Board powers, duties, and authority.

The board shall administer, coordinate, and enforce the provisions of this chapter, evaluate the qualifications, and approve the examinations for licensure under this chapter. The board shall keep any records and minutes as are necessary to carry out its functions. The board may:

  1. Issue subpoenas, examine witnesses, and administer oaths, and may investigate allegations of practices violating the provisions of this chapter.
  2. Adopt rules pursuant to chapter 28-32, relating to professional conduct to carry out the policy of this chapter, including rules relating to professional licensure and to the establishment of ethical standards of practice for persons holding a license to practice occupational therapy in this state.

Source:

S.L. 1983, ch. 491, § 5.

43-40-06. Board administrative authority and requirements.

  1. The board may employ an executive secretary and other officers and employees it deems necessary.
  2. The board shall adopt a seal by which it authenticates its proceedings.
  3. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.
  4. The executive secretary shall pay upon approval of the board all appropriate expenses incurred by the board in the administration of this chapter.

Source:

S.L. 1983, ch. 491, § 6.

43-40-07. Fees.

The board shall prescribe by rule the fee for application for examination, the initial license fee, the renewal of license fee, the late renewal fee, and the limited permit fee. These fees must be set in such an amount as to reimburse the board, to the extent feasible, for the cost of the services rendered.

Source:

S.L. 1983, ch. 491, § 7.

43-40-08. Requirements for licensure.

An applicant applying for a license as an occupational therapist or as an occupational therapy assistant shall file a written application provided by the board, demonstrating to the satisfaction of the board that the applicant:

  1. Is competent.
  2. Will adhere to the code of ethics adopted by the board.
  3. Has successfully completed the academic requirements of an educational program in occupational therapy recognized by the board.
    1. The occupational therapy educational program must be accredited by a national occupational therapy accrediting agency approved by the board.
    2. The occupational therapy assistant educational program must be accredited by a national occupational therapy accrediting agency approved by the board.
  4. Has successfully completed a period of supervised fieldwork experience required by the accredited educational institution where the applicant met the academic requirements required by a national occupational therapy accrediting agency approved by the board.
  5. Has passed an examination approved by the board.

Source:

S.L. 1983, ch. 491, § 8; 1999, ch. 394, § 5.

43-40-09. Occupational therapy assistant licensure as occupational therapist. [Repealed]

Repealed by S.L. 1999, ch. 394, § 16.

43-40-10. Internationally trained applicants.

Internationally trained occupational therapists and occupational therapy assistants shall satisfy requirements equivalent to those contained in section 43-40-08.

Source:

S.L. 1983, ch. 491, § 10; 1999, ch. 394, § 6.

43-40-11. Application for examination or licensure — Denial.

  1. A person satisfying the requirements of section 43-40-08 may apply for examination in the manner the board prescribes. The application must be accompanied by the nonrefundable fee prescribed under section 43-40-07.
  2. The board shall approve an examination for occupational therapists and an examination for occupational therapy assistants and establish standards for acceptable performance.
  3. The board shall notify each applicant that the application and evidence submitted for licensing is satisfactory and accepted, or unsatisfactory and rejected. If rejected, the notice must state the reasons for rejection and explain the right to a hearing under chapter 28-32. A hearing must be requested within thirty days.

Source:

S.L. 1983, ch. 491, § 11; 1999, ch. 394, § 7.

43-40-12. Waiver of requirements for licensure.

The board may waive the examination, education, or experience requirements and grant a license to any applicant who presents proof of current licensure or registration as an occupational therapist or occupational therapy assistant in another state which requires standards for licensure or registration considered by the board to be equivalent to the requirements for licensure of this chapter.

Source:

S.L. 1983, ch. 491, § 12; 1999, ch. 394, § 8.

43-40-13. Limited permit — Expiration — Renewal.

  1. The board may grant a limited permit to a person who has completed the education and experience requirements of this chapter. A limited permit allows the person to practice occupational therapy under supervision of a North Dakota licensed occupational therapist. A limited permit is valid until the results of the examination taken by the person are available to the board and the board decides to issue or deny a license to the person.
  2. The holder of a limited permit must take the next available examination. The permit expires if the holder fails to take the next available examination.
  3. A limited permit may be renewed one time if the person has failed the examination or, with good cause as determined by the board, failed to take the next examination.

Source:

S.L. 1983, ch. 491, § 13; 1999, ch. 394, § 9.

43-40-14. Issuance of license.

The board shall issue a license to any person who meets the requirements of this chapter upon payment of the prescribed license fee.

Source:

S.L. 1983, ch. 491, § 14.

43-40-15. Renewal of license.

  1. Any license issued under this chapter is subject to biennial renewal and expires unless renewed in the manner prescribed by the rules of the board. The board may provide for the late renewal of a license upon the payment of a late fee in accordance with its rules, but late renewal of a license may not be granted more than three years after its expiration.
  2. The board may establish additional requirements for license renewal which provide evidence of continuing competency.

Source:

S.L. 1983, ch. 491, § 15; 1999, ch. 394, § 10; 2003, ch. 375, § 1.

43-40-16. Suspension and revocation of license — Refusal to renew.

  1. The board may deny a license, refuse to renew a license, suspend a license, or revoke a license or may impose probationary conditions if the licensee or applicant for license has been found guilty of unprofessional conduct. Unprofessional conduct includes:
    1. Obtaining a license by means of fraud, misrepresentation, or concealment of material facts.
    2. Being guilty of unprofessional conduct as defined by the rules adopted by the board, or violating any code of ethics adopted by the board.
    3. Being convicted of an offense, as defined by section 12.1-01-04, that the board determines has a direct bearing upon a person’s ability to serve the public as an occupational therapist or an occupational therapy assistant or, following conviction of any offense, if the board determines that the person is not sufficiently rehabilitated under section 12.1-33-02.1.
    4. Violating any lawful order or rule rendered or adopted by the board.
    5. Violating this chapter or the rules promulgated by the board.
    6. A pattern of inappropriate practice as an occupational therapist or occupational therapy assistant.
    7. The use of any false, fraudulent, or deceptive statement in any document connected with the practice of occupational therapy.
    8. Sexual abuse, misconduct, or exploitation related to the licensee’s practice of occupational therapy.
    9. Gross negligence in the practice of occupational therapy.
  2. A refusal to renew, suspension, revocation, or imposition of probationary conditions upon a license may be ordered by the board after a hearing under chapter 28-32. An application for reinstatement may be made to the board one year from the date of the revocation of a license. The board may accept or reject an application for reinstatement, and may hold a hearing to consider such reinstatement.

Source:

S.L. 1983, ch. 491, § 16; 1985, ch. 82, § 116; 1999, ch. 394, § 11.

43-40-16.1. Complaints — Investigations.

  1. A person may file a written complaint with the board setting forth the specific charges upon which the complaint is made. Upon receiving a complaint, the board shall notify the licensee of the complaint and request a written response from the licensee. A licensee who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any reasonable question raised by or on behalf of the board relating to the subject of the investigation and providing copies of records when reasonably requested by the board.
  2. After review of the complaint, the licensee’s response, and information obtained in the investigation, the board shall determine if there is a reasonable basis to believe the allegations are true and that the allegations constitute a violation of this chapter or the rules of the board. If the board determines there is a reasonable basis to believe the allegations are true and the allegations constitute a violation of this chapter or the rules of the board, the board shall take appropriate action. If a reasonable basis is not found by the board, the board shall notify the complaining party and the licensee in writing.

Source:

S.L. 1999, ch. 394, § 14.

43-40-16.2. Costs of prosecution — Disciplinary proceedings.

The board may impose a fee against any person subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative action resulting in disciplinary action, including the cost of investigation, the amount paid for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses. When applicable, a license may be suspended until the costs are paid to the board.

Source:

S.L. 1999, ch. 394, § 15.

43-40-17. Occupational therapist — Consultation and evaluation — Order from physician. [Repealed]

Repealed by S.L. 2003, ch. 375, § 2.

43-40-18. Penalty — Injunction.

Any person who violates section 43-40-02 is guilty of a class B misdemeanor. In addition to the criminal penalty provided, the civil remedy of an injunction is available to restrain and enjoin violations of any provisions of this chapter.

Source:

S.L. 1983, ch. 491, § 17; 1999, ch. 394, § 12; 2009, ch. 359, § 9.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-41 Social Workers

43-41-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of social work examiners.
  2. “Client” means the individual, couple, family, group, organization, or community that seeks or receives social work services from an individual licensed social worker or an organization, regardless of whether the licensed social worker or organization bills or accepts or requests the payment of fees for the services.
  3. “Clinical supervision for licensure” means an interactional professional relationship between a clinical supervisor which meets the standards adopted by the board and a social worker and which provides evaluation and direction over the supervisee’s practice of clinical social work in preparation for the social worker’s licensure as a licensed clinical social worker, in accordance with the requirements adopted by the board, and promotes development of the social worker’s knowledge, skills, and abilities to engage in the practice of clinical social work in an ethical and competent manner.
  4. “Consultation” means an advisory professional relationship between a social worker and an individual with particular expertise, with the social worker legally and ethically maintaining responsibility for all judgments and decisions regarding service to the client.
  5. “Counseling” means a method used by a social worker to assist an individual, couple, family, or group in learning how to solve problems and make decisions about personal, health, social, educational, vocational, financial, and other interpersonal concerns.
  6. “Electronic social work services” means the use of a computer, including the internet, social media, online chat, text, and electronic mail, or other electronic means, such as a wireless communications device, landline telephone, or video technology, to provide information to the public, deliver social work services to a client, communicate with a client, manage confidential information and case records, store and access information about clients, and arrange payment for professional services.
  7. “Licensed baccalaureate social worker” means an individual licensed under this chapter to practice baccalaureate social work.
  8. “Licensed clinical social worker” means an individual licensed under this chapter to practice clinical social work.
  9. “Licensed master social worker” means an individual licensed under this chapter to practice masters social work.
  10. “Private practice of social work” means the independent practice of social work by a licensee who is practicing within that licensee’s scope of practice, and who is self-employed on a full-time or part-time basis and is responsible for that independent practice. Consultation services provided to an organization or an agency are not considered to be the private practice of social work.
  11. “Psychotherapy” means the use of treatment methods utilizing a specialized, formal interaction between a licensed clinical social worker and an individual, couple, family, or group in which a therapeutic relationship is established, maintained, and sustained to understand unconscious processes; intrapersonal, interpersonal, and psychosocial dynamics; and the assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders, conditions, or addictions.
  12. “Social work case management” means a method to plan, provide, evaluate, and monitor services by a licensed social worker from a variety of resources on behalf of and in collaboration with a client.
  13. “Social work practice” means the application of social work theory, knowledge, methods, ethics, and the professional use of self to restore or enhance social, psychosocial, or biopsychosocial functioning of individuals, couples, families, groups, organizations, and communities. The scope of practice for licensees of the board consist of the following:
    1. The practice of baccalaureate social work, which includes the application of social work theory, knowledge, methods, ethics, and the professional use of self to restore or enhance social, psychosocial, or biopsychosocial functioning of individuals, couples, families, groups, organizations, and communities. Baccalaureate social work is generalist practice that includes assessment, planning, implementation, intervention, evaluation, research, social work case management, information and referral, counseling, supervision, consultation, education, advocacy, community organization, and the development, implementation, and administration of policies, programs, and activities.
    2. The practice of masters social work, which includes, in addition to the practice of baccalaureate social work, the application of specialized knowledge and advanced practice skills in the areas of assessment, treatment planning, implementation, intervention, evaluation, social work case management information and referral, counseling, supervision, consultation, education, research, advocacy, community organization, and the development, implementation, and administration of policies, programs, and activities. Under the supervision of a licensed clinical social worker, the practice of masters social work may include the practices reserved to licensed clinical social workers.
    3. The practice of clinical social work, which includes, in addition to the practice of baccalaureate social work and the practice of masters social work, the application of specialized clinical knowledge and advanced clinical skills in the areas of assessment, treatment planning, implementation and evaluation, social work case management information and referral, counseling, supervision, consultation, education, research, advocacy, community organization, the development, implementation, intervention, and administration of policies, programs, and activities, and the diagnosis and treatment of mental, emotional, and behavioral disorders, conditions, and addictions. Treatment methods include the provision of individual, marital, couple, family, and group counseling and psychotherapy. The practice of clinical social work may include the provision of clinical supervision.

Source:

S.L. 1983, ch. 492, § 1; 1985, ch. 492, § 1; 1997, ch. 379, § 2; 2003, ch. 376, § 1; 2019, ch. 366, § 2, effective February 1, 2020.

Collateral References.

Communications to social worker as privileged, 50 A.L.R.3d 563.

Admissibility of social worker’s expert testimony on custody issue, 1 A.L.R.4th 837.

Social worker malpractice, 58 A.L.R.4th 977.

43-41-02. Social work practice — Exceptions.

  1. Nothing in this chapter may be construed to prevent any person from doing work within the standards and ethics of that person’s profession and calling, provided that the person does not present to the public, by title or description of services, that the person is engaging in social work practice.
  2. This chapter may not be construed to prevent students who are enrolled in programs of study leading to social work degrees from interning with a licensed baccalaureate social worker, a licensed master social worker, or a licensed clinical social worker.
  3. Nothing in this chapter prevents the employment of, or volunteering by, individuals in nonprofit agencies or community organizations provided these persons do not hold themselves out to the public as being social workers.
  4. Nothing in this chapter prevents the employment of social work designees by hospitals, basic care facilities, or skilled nursing facilities, provided these individuals work under the direction of a social worker or social work consultant licensed under this chapter and that the board be notified of the name of the designee’s employer and the name of the licensee who is providing direction or consultation to the designees.
  5. This chapter does not require public or appointed officials or administrators, acting in that capacity, or any other social or human service administrators who do not hold themselves out to the public as social workers, by title or description of services, to be licensed under this chapter.
  6. This chapter does not prevent individuals with master’s or doctoral degrees in the field of counseling with specialization in mental health from serving as counselors or therapists in mental health in state institutions or regional human service centers, if they do not hold themselves out to the public as social workers.

Source:

S.L. 1983, ch. 492, § 2; 1985, ch. 491, § 1; 1985, ch. 492, § 2; 2003, ch. 376, § 2; 2009, ch. 378, § 1; 2019, ch. 366, § 3, effective February 1, 2020.

43-41-03. Representation to the public.

  1. Only those persons licensed to practice under this chapter may represent themselves as a licensed baccalaureate social worker, licensed master social worker, or licensed clinical social worker.
  2. The license issued by the board under the provisions of this chapter must be prominently displayed at the principal place of business where the social worker practices.

Source:

S.L. 1983, ch. 492, § 3; 2003, ch. 376, § 3; 2019, ch. 366, § 4, effective February 1, 2020.

43-41-04. Licenses — Rules.

  1. Except as otherwise provided in this chapter, a person may not engage in social work practice in this state unless that person is a licensed baccalaureate social worker, a licensed master social worker, or a licensed clinical social worker.
  2. To obtain a license to engage in the practice of social work, an applicant shall submit an application to the board in the form prescribed by the board and provide evidence satisfactory to the board the applicant:
    1. Has attained the age of majority.
    2. Has passed the examination approved by the board for this purpose the license sought.
    3. Has satisfied the board the applicant agrees to adhere to the code of social work ethics adopted by the board.
    4. Is of good moral character. As an element of good moral character, the board shall consider the applicant’s adherence to values, principles, and ethical standards consistent with professional social work practice, and shall also consider information obtained through reports made under section 43-41-04.2 in licensure decisions to the extent permissible by all applicable laws.
    5. Has paid all applicable fees specified by the board relative to the licensure process.
  3. An applicant for licensure for the practice of:
    1. Baccalaureate social work must demonstrate having been awarded a baccalaureate degree in social work from a social work program approved by the board.
    2. Masters social work must demonstrate having been awarded a doctorate or master’s degree in social work from a social work program approved by the board.
    3. Clinical social work must demonstrate:
      1. Having been awarded a doctorate or master’s degree in social work from a social work program approved by the board.
      2. The successful completion, within a four-year period, of three thousand hours of supervised post-master’s clinical social work experience. The initial one thousand five hundred of the required hours must have been under the supervision of a licensed clinical social worker. Additional hours of supervision may be under other qualified mental health professionals approved by the board if barriers due to the geographical location, disability, or other factors determined by the board to create a hardship exist for the applicant. The qualified professional must be registered or otherwise qualified as a clinical supervisor by the board that licenses the other professional. However, if an applicant began supervised post-master’s clinical social work experience before August 1, 2009, a licensed master social worker who has two years of experience, a licensed psychologist with a doctorate degree, or a licensed psychiatrist may have supervised the required hours. The applicant may demonstrate to the board’s satisfaction that experience in the practice of clinical social work meets or exceeds the minimum supervisory requirements of the board.
  4. The board may adopt rules pertaining to the supervision required under this section.

Source:

S.L. 1983, ch. 492, § 4; 1997, ch. 379, § 3; 2003, ch. 376, § 4; 2009, ch. 378, § 2; 2017, ch. 299, § 1, effective July 1, 2017; 2019, ch. 366, § 5, effective February 1, 2020.

43-41-04.1. Fees.

The board shall set by rule the following fees:

  1. Application fee.
  2. License fee.
  3. Renewal fee.
  4. Late fee.
  5. Administrative fees.
  6. Continuing education fees.

Source:

S.L. 1997, ch. 379, § 7; 2003, ch. 376, § 5.

43-41-04.2. Criminal history record and child abuse and neglect checks. [Effective through August 31, 2022]

  1. The board shall require each applicant for licensure and may require any licensee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant.
  2. The board shall require from each applicant for licensure and may require from any licensee written consent to a child abuse information index check and authorization for the department of human services or its designee to release to the board reports of decisions that services are required for child abuse or neglect filed pursuant to section 50-25.1-05.2. All information obtained from the department or its designee is confidential and closed to the public except that it may be disclosed for use in an adjudicative or judicial proceeding. All costs associated with obtaining the reports are the responsibility of the applicant or licensee.

Source:

S.L. 2007, ch. 115, § 12.

43-41-04.2. Criminal history record and child abuse and neglect checks. [Effective September 1, 2022]

  1. The board shall require each applicant for licensure and may require any licensee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant.
  2. The board shall require from each applicant for licensure and may require from any licensee written consent to a child abuse information index check and authorization for the department of health and human services or its designee to release to the board reports of decisions that services are required for child abuse or neglect filed pursuant to section 50-25.1-05.2. All information obtained from the department or its designee is confidential and closed to the public except that it may be disclosed for use in an adjudicative or judicial proceeding. All costs associated with obtaining the reports are the responsibility of the applicant or licensee.

Source:

S.L. 2007, ch. 115, § 12; 2021, ch. 352, § 367, effective September 1, 2022.

43-41-05. Private practice of social work.

A person may not engage in the private practice of social work unless that person has been licensed by the board as a licensed clinical social worker.

Source:

S.L. 1983, ch. 492, § 5; 1985, ch. 492, § 3; 1989, ch. 534, § 2; 1995, ch. 418, § 1; 1997, ch. 379, § 4; 2003, ch. 376, § 6; 2019, ch. 366, § 6, effective February 1, 2020.

43-41-05.1. Electronic social work services.

  1. The practice of social work in this state through electronic social work services or other means, regardless of the location of the practitioner, constitutes the practice of social work and is subject to this chapter.
  2. The practice of social work by a practitioner in this jurisdiction through electronic social work services or other means, regardless of the location of the client, constitutes the practice of social work and is subject to this chapter.
  3. A social worker providing electronic social work services shall take all necessary measures to ensure compliance with relevant practice standards as established by the board.

Source:

S.L. 2019, sb2361, § 11, effective February 1, 2020.

43-41-06. Waiver of requirements. [Repealed]

Repealed by S.L. 1997, ch. 379, § 8.

43-41-07. Qualification for licensure by an applicant licensed in another jurisdiction.

  1. An applicant may be granted a license upon:
    1. Satisfactory proof to the board that the applicant is licensed in good standing under the laws of another jurisdiction that imposes substantially the same requirements as this chapter; or
    2. Determination of the board that at the time of application for licensure under this section the applicant is licensed in good standing under the laws of another jurisdiction and possesses qualifications or experience in the practice of social work which are substantially similar to the minimum requirements for licensure under this chapter.
  2. The applicant shall pay the licensure fees specified by the board.

Source:

S.L. 1983, ch. 492, § 7; 2003, ch. 376, § 7; 2017, ch. 299, § 2, effective July 1, 2017; 2017, ch. 97, § 26, effective August 1, 2017.

Note.

Section 43-41-07 was amended 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 26 of Chapter 97, Session Laws 2017, Senate Bill 2042; and Section 2 of Chapter 299, Session Laws 2017, Senate Bill 2033.

43-41-08. Board of social work examiners — Qualifications — Appointment — Term of office — Compensation.

  1. The governor shall appoint the North Dakota board of social work examiners, which must consist of seven members, two of whom must be, at the time of initial appointment, licensed baccalaureate social workers; one of whom must be, at the time of initial appointment, a licensed master social worker; two of whom must be, at the time of initial appointment, a licensed clinical social worker; and two of whom must be laypersons. Board members must demonstrate no conflict of interest.
  2. The term of office of each board member must be for three years with no more than three members appointed annually. A member may not serve more than two consecutive terms.
  3. The governor may remove any board member for good cause after giving that member a written statement of the reasons for removal and after that member has had an opportunity for a hearing.
  4. Each member of the board is entitled to receive as compensation a sum not to exceed the daily compensation of members of the legislative assembly per day for each day during which the member is engaged in performance of the official duties of the board, and is entitled to be reimbursed for all reasonable and necessary expenses incurred in connection with the discharge of the official duties as provided in section 54-06-09 .
  5. Annually, board members shall elect by a majority vote of the board a chairperson who shall preside at meetings of the board and a vice chairperson who shall preside at meetings of the board in the chairperson’s absence. A majority of the members of the board constitutes a quorum.

Source:

S.L. 1983, ch. 492, § 8; 2003, ch. 376, § 8; 2009, ch. 378, § 3; 2019, ch. 366, § 7, effective February 1, 2020.

43-41-09. Duties and responsibilities of board.

In addition to the duties set forth elsewhere in this chapter, the board shall:

  1. Adopt rules to administer and carry out the provisions of this chapter.
  2. Produce an annual list of the names and level of licensure of all persons licensed under this chapter and make the list available upon request.
  3. At its discretion, employ staff and provide for staff compensation.
  4. Approve examinations for licensing social workers.
  5. Establish fees and receive all moneys collected under this chapter.
  6. Deposit and disburse all fees and moneys collected by the board in accordance with section 54-44-12.
  7. Recommend prosecution for violations of this chapter to the appropriate state’s attorney.
  8. Recommend the attorney general bring civil actions to seek injunctive and other relief against violations of this chapter.
  9. Establish continuing education requirements for license renewal.
  10. Adopt a code of social work ethics.

Source:

S.L. 1983, ch. 492, § 9; 1989, ch. 534, § 3; 2003, ch. 376, § 9.

43-41-10. Grounds for disciplinary proceedings.

  1. The board may deny, refuse to renew, suspend, revoke, reprimand, restrict, or limit the license of, or place on probationary status any license issued under this chapter on proof at a hearing the applicant or licensed person:
    1. Has been convicted of an offense determined by the board to have a direct bearing upon that individual’s ability to practice social work or is not sufficiently rehabilitated as determined by the board in accordance with section 12.1-33-02.1.
    2. Is addicted to the habitual use of alcoholic beverages, narcotics, or stimulants or other addictive substances that impair the social worker’s ability to practice of social work.
    3. Has been grossly negligent in the practice of social work.
    4. Has violated one or more of the rules and regulations of the board.
    5. Has violated the code of social work ethics adopted by the board.
    6. Has failed to make a report to the board as required under section 43-41-11.1.
  2. In order to pursue the investigation, the board may subpoena and examine witnesses and records, including client records, and copy, photograph, or take samples. The board may require a licensed social worker to give statements under oath. The board may require a licensed social worker to submit to a physical, chemical, or mental examination, by a physician or physicians or other qualified evaluation professionals selected by the board if it appears to be in the best interests of the public that an examination be secured. The board may require a licensee to enroll in a treatment or monitoring program approved by the board if the board determines in good faith to do so would be beneficial to the licensee or protect the public. Failure to satisfactorily undergo an examination or enroll in a treatment and monitoring program must be reported to the board by the treating professional. Treating professionals are immune from any liability for reporting made in good faith. A licensee is deemed to consent to the treating professional of the approved evaluation, or the approved treatment and monitoring program, reporting to the board on the results of the examination or the progress of the treatment or monitoring program, at such intervals the board deems necessary. The approved examination, or treatment or monitoring program, may release examination information, or treatment or monitoring information, to the board so the board may evaluate the results of the examination or the licensee’s progress in and the effectiveness of the treatment or monitoring program. A written request from the board constitutes authorization to release information. Absent a client release on file allowing the release of information, all client records released to the board are confidential and are not public records.
  3. Unless there is a client release on file allowing the release of information at the public hearing, client and juvenile records introduced or client and juvenile testimony of a personal nature taken at a public hearing is confidential and closed to the public. The portions of board meetings at which client and juvenile testimony or records are taken or reviewed are confidential and closed to the public. If no client or juvenile testimony or records are taken or reviewed, the remainder of the meeting is an open meeting unless a specific exemption is otherwise applicable.
  4. Until the board proceeds with disciplinary action, the complaint, the response, and any record received by the board during an investigation of a complaint under this section are exempt records, as defined in section 44-04-17.1.

Source:

S.L. 1983, ch. 492, § 10; 1989, ch. 534, § 4; 1995, ch. 419, § 1; 1997, ch. 379, § 5; 2019, ch. 366, § 8, effective February 1, 2020.

Collateral References.

Social worker malpractice, 58 A.L.R.4th 977.

43-41-11. Hearings and disciplinary proceedings — Appeals.

  1. Upon the filing of a written and signed complaint that alleges that a licensee practicing in this state has engaged in conduct identified as grounds for disciplinary action under section 43-41-10, and which sets forth information upon which a reasonable and prudent person might believe that further inquiry should be made, the board shall cause the matter to be investigated.
  2. The board may investigate a complaint on its own motion, without requiring the identity of the complainant to be made a matter of public record, if the board concludes that good cause exists for preserving the anonymity of the complainant.
  3. If the investigation reveals no grounds to support the complaint, the board, three years following the date on which the complaint was filed, shall expunge the complaint from the social worker’s individual record in the board’s office.
  4. If the investigation reveals grounds to support the complaint, the board shall initiate a disciplinary action by serving upon the licensee a notice of disciplinary action setting forth the allegations upon which the action is based, as well as a specification of the issues to be considered and determined.
  5. If a written response contesting the allegations is not received by the board within twenty days of the date that the notice of disciplinary action was received or refused, the allegations must be deemed admitted and disciplinary sanctions deemed appropriate by the board must be imposed.
  6. The board may at any time enter into an informal resolution to resolve the complaint or disciplinary action.
  7. An appeal from the board’s final decision may be taken in accordance with the provisions of section 28-32-42.
  8. The board shall recover costs of the board resulting from a hearing or disciplinary process:
    1. If an order is issued in resolution of a disciplinary proceeding before the board, the board may request the administrative law judge to direct a licensee found as a result of the proceeding to have violated any laws or rules to pay to the board a sum not to exceed the costs of the investigation and fees of the attorneys representing the board in the matter. The costs to be assessed must be fixed by the administrative law judge and may not be increased by the board.
    2. If an order for recovery of costs is made and timely payment is not made as directed in the board’s decision, the board may enforce the order for payment in the district court of Burleigh County. This right of enforcement is in addition to any other rights the board may have as to any person directed to pay costs. In any action for recovery of costs, proof of the board’s decision is conclusive proof of the validity of the order of payment and the terms for payment.

Source:

S.L. 1983, ch. 492, § 11; 1989, ch. 534, § 5; 2001, ch. 293, § 24; 2003, ch. 376, § 10; 2005, ch. 370, § 1; 2019, ch. 366, § 9, effective February 1, 2020.

43-41-11.1. Permission to report — Immunity.

An individual who has knowledge of conduct by an applicant or a licensee which may constitute grounds for disciplinary action under this chapter or the rules of the board or of any unlicensed practice under this chapter may report the violation to the board. An individual is immune from civil liability or criminal prosecution for submitting in good faith a report under this chapter or for otherwise reporting, providing information, or testifying about violations or alleged violations of this chapter.

Source:

S.L. 2019, ch. 366, § 12, effective February 1, 2020.

43-41-11.2. Duty to report — Immunity.

A licensed social worker who has substantial evidence a licensee has an active addictive disease for which the licensee is not receiving treatment under a program approved by the board under an agreement entered under this section, is diverting a controlled substance, or is mentally or physically incompetent to carry out the duties of the license, shall report the evidence to the board. An individual who reports under this section in good faith and without malice is immune from any civil or criminal liability arising from the report. Failure to provide a report within a reasonable time may be considered grounds for disciplinary action against the licensee.

Source:

S.L. 2019, ch. 366, § 13, effective February 1, 2020.

43-41-12. Renewal of licenses.

  1. All licenses are effective when granted by the board.
  2. All licenses of licensed baccalaureate social workers, licensed master social workers, and licensed clinical social workers expire on December thirty-first of every odd-numbered year.
  3. A license may be renewed by payment of the renewal fee and completion of the continuing education requirements set by the board, provided the applicant’s license is not currently revoked or grounds for denial under section 43-41-10 do not exist.
  4. If the application for renewal is not received on or before the expiration date, the license expires and the person may not practice social work until a new application is made and a license is granted by the board.
  5. At the time of renewal the board may require each applicant to present satisfactory evidence the applicant completed the continuing education requirements specified by the board.
  6. If a license has not been renewed as a result of nonpayment of the renewal fee or the failure of the licensee to present satisfactory evidence of completion of the continuing education requirements, the licensee must reapply for licensure.
  7. The board may extend the renewal deadline for an applicant having proof of medical or other hardship rendering the applicant unable to meet the renewal deadline.

Source:

S.L. 1983, ch. 492, § 12; 1997, ch. 379, § 6; 2003, ch. 376, § 11; 2019, ch. 366, § 10, effective February 1, 2020.

43-41-12.1. Inactive license — Surrender. [Repealed]

Repealed by S.L. 1997, ch. 379, § 8.

43-41-13. Bribery — False statements. [Repealed]

Repealed by S.L. 2009, ch. 359, § 14.

43-41-14. Penalty.

Any person who violates subsection 1 of section 43-41-04 is guilty of a class B misdemeanor.

Source:

S.L. 1983, ch. 492, § 14; 2009, ch. 359, § 10.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Social worker malpractice, 58 A.L.R.4th 977.

CHAPTER 43-42 Respiratory Care Practitioners

43-42-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Board” means the state board of respiratory care.
  2. “Bona fide respiratory care training program” means a program of respiratory care education which is accredited by the commission on accreditation of respiratory care, or the commission’s successor organization.
  3. “Certification examination” means the entry level examination for respiratory therapists administered by the national board for respiratory care or its successor organization.
  4. “Certified respiratory therapist” means a person licensed by the board to practice respiratory care under the direction or supervision of a physician or registered respiratory therapist.
  5. “National board for respiratory care” means the body issuing credentials for the respiratory care profession, or the board’s successor organization.
  6. “Polysomnography” means the practice of attending, monitoring, and recording physiologic data during sleep for the purpose of identifying and assisting in the treatment of sleep-wake disorders.
  7. “Registered polysomnographic technologist” means an individual licensed by the board to practice polysomnography under supervision as prescribed by the board by rule.
  8. “Registered respiratory therapist” means a person licensed by the board to practice respiratory care.
  9. “Registry examination” means the advanced level examination for respiratory therapists administered by the national board for respiratory care.
  10. “Respiratory care” means the health specialty involving the treatment, management, control, and care of patients with deficiencies and abnormalities of the cardiopulmonary systems. Respiratory care is implemented on an order from a licensed physician, certified nurse practitioner, or physician’s assistant and includes the use of medical gases, air and oxygen administering apparatuses, environmental control systems, humidification and aerosols, drugs and medications, apparatuses for cardiorespiratory support and control, postural drainage, chest percussion and vibration and breathing exercises, pulmonary rehabilitation, assistance with cardiopulmonary resuscitation, maintenance of natural and artificial airways, and insertion of artificial airways. The term also includes testing techniques to assist in diagnosis, monitoring, treatment, and research, including the measurement of cardiorespiratory volumes, pressures and flows, and the drawing and analyzing of samples of arterial, capillary, and venous blood.
  11. “Respiratory therapist” means a certified respiratory therapist or a registered respiratory therapist.
  12. “Respiratory therapy” means respiratory care.

Source:

S.L. 1985, ch. 493, § 1; 1995, ch. 420, § 1; 2001, ch. 389, § 1; 2005, ch. 371, § 1; 2013, ch. 333, § 1; 2017, ch. 293, § 1, effective August 1, 2017.

43-42-02. State board of respiratory care.

  1. The state board of respiratory care is responsible for the enforcement and administration of this chapter and for the adoption of any rules necessary to govern the practice of respiratory care in this state.
  2. The board consists of seven members appointed by the governor. Four members must be respiratory therapists, chosen from a list of eight respiratory therapists supplied to the governor by the North Dakota society for respiratory care. One member must be a physician chosen from a list of two physicians supplied to the governor by the North Dakota medical association. The governor shall appoint one member to be a representative of the general public. One member must be a registered polysomnographic technologist chosen from a list of candidates recommended to the governor by the association of polysomnographic technologists. Members are appointed for terms of three years. Each member holds office until the member’s successor is duly appointed and qualified. A vacancy in the office of any member may be filled for the unexpired term only. No member may serve more than two successive complete terms.
  3. The board shall annually select a chairman from among its members. The board shall meet at least twice each year and also shall meet upon the call of the chairman.

Source:

S.L. 1985, ch. 493, § 2; 1995, ch. 420, § 2; 2001, ch. 389, § 2; 2005, ch. 371, §§ 2, 3.

43-42-03. Respiratory therapist and polysomnographic technologist licensing — Fees.

  1. The board shall license as a registered respiratory therapist any applicant whom the board determines to be qualified to perform the duties of a registered respiratory therapist. In making this determination, the board shall require evidence that the applicant has successfully completed a bona fide respiratory care training program and has passed the registry examination. The board shall establish fees not in excess of one hundred dollars for the issuance and renewal of a registered respiratory therapist license.
  2. The board shall license as a certified respiratory therapist any applicant whom the board determines to be qualified to perform the duties of a certified respiratory therapist. In making this determination, the board shall require evidence that the applicant has successfully completed a bona fide respiratory care training program and has passed the certification examination. The board shall establish fees not in excess of ninety dollars for the issuance and renewal of a certified respiratory therapist license.
  3. The board shall license as a registered polysomnographic technologist any applicant whom the board determines to be qualified to perform the duties of a registered polysomnographic technologist. In making this determination, the board shall require evidence that the applicant has complied with the rules adopted by the board under section 43-42-04.1. The board shall establish fees not in excess of ninety dollars for issuance and for renewal of a registered polysomnographic technologist license.
  4. The board may assess a late fee not in excess of twenty-five dollars for all license renewal applications that are postmarked after December thirty-first of the year prior to the year of renewal.
  5. The board shall refuse to license any applicant, shall suspend or revoke any license, or may fine, require additional education or appropriate treatment for any licensee, after proper notice and a hearing, if the applicant or licensee:
    1. Is not qualified or competent to perform the duties of a registered respiratory therapist, a certified respiratory therapist, or a registered polysomnographic technologist.
    2. Has attempted to obtain or has obtained licensure under this chapter by fraud or material misrepresentation.
    3. Has been found by the board to have been grossly negligent as a registered respiratory therapist, certified respiratory therapist, or registered polysomnographic technologist.
    4. Has engaged in conduct as a registered respiratory therapist, certified respiratory therapist, or registered polysomnographic technologist which is unethical, unprofessional, or detrimental to the health of the public.
    5. Has failed to demonstrate satisfactory completion of such continuing courses of study in respiratory care as the board may require.
    6. Has been convicted or adjudged guilty of an offense, as defined by section 12.1-01-04, determined by the board to have a direct bearing upon that individual’s ability to practice respiratory care or polysomnography and is not sufficiently rehabilitated as determined by the board in accordance with section 12.1-33-02.1.
    7. Is habitually drunk or is addicted to the use of a controlled substance as defined in chapter 19-03.1.
    8. Has been declared mentally incompetent by a court of competent jurisdiction, and who has not thereafter been lawfully declared competent.
  6. The board may impose a fee on any person subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, which are not reversed on appeal, including the amount paid by the board for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses.
  7. Licenses issued under this chapter expire annually, but may be renewed upon application to the board and payment of the annual renewal fee established by the board. Licenses which have expired, been suspended, or been revoked may be renewed or reissued upon satisfaction of any conditions that may be established by the board, and after payment of a fee established by the board.
  8. The board shall require as a condition of renewal and relicensure that the applicant demonstrate satisfactory completion of continuing courses of study in respiratory care.

Source:

S.L. 1985, ch. 493, § 3; 1995, ch. 420, § 3; 2001, ch. 389, § 3; 2005, ch. 371, § 4; 2013, ch. 333, § 2; 2017, ch. 293, § 2, effective August 1, 2017.

43-42-04. Respiratory care practice.

The practice of respiratory care may be performed in hospitals, as ambulatory or in-home care, and in other settings where respiratory care is provided in accordance with a prescription of a licensed physician, certified nurse practitioner, or physician’s assistant. In addition, respiratory care may be provided during the transportation of a patient, and under any circumstances in which an epidemic or public disaster necessitates respiratory care. A person may not practice, nor represent that the person is able to practice, as a registered respiratory therapist without being licensed as a registered respiratory therapist, or as a certified respiratory therapist without being licensed as a certified respiratory therapist, in accordance with this chapter.

Source:

S.L. 1985, ch. 493, § 4; 2001, ch. 389, § 4; 2013, ch. 333, § 3.

43-42-04.1. Polysomnography practice.

  1. After December 31, 2005, a person may not practice, nor represent that the person is able to practice, polysomnography unless licensed under this chapter as a registered polysomnographic technologist. A registered polysomnographic technologist may not practice respiratory care except as may be authorized by rules adopted by the board. A registered polysomnographic technologist is limited in practice to polysomnography within the scope of practice and limitations as provided by rules adopted by the board.
  2. The board shall adopt rules regulating registered polysomnographic technologists and establishing the scope of practice of a registered polysomnographic technologist. The rules may include requirements for examination requirements for licensure, education requirements for licensure, continuing courses of study in polysomnography, and student practice.
  3. This section does not prohibit a respiratory therapist from practicing respiratory care.

Source:

S.L. 2005, ch. 371, § 5.

43-42-05. Application of chapter.

  1. This chapter does not prohibit a person enrolled in a bona fide respiratory care training program from performing those duties essential for completion of a student’s clinical service; provided, that the duties are performed under the supervision or direction of a physician or registered respiratory therapist and the person is identified as a “student respiratory therapist”.
  2. If examinations prepared by the national board for respiratory care are no longer available or become unacceptable to the board, the board may develop, approve, and use examinations for the licensure of registered respiratory therapists and certified respiratory therapists.
  3. This chapter does not prevent a licensed and qualified member of another health care profession from performing any of the duties of a registered respiratory therapist, a certified respiratory therapist, or a registered polysomnographic technologist that are consistent with the accepted standards of that person’s profession, provided the person is not represented as a registered respiratory therapist, certified respiratory therapist, or registered polysomnographic technologist.
  4. This chapter does not prohibit self-care by a patient or the gratuitous care by a friend or member of the family who does not represent or hold out to be a registered or certified respiratory therapist.
  5. This chapter does not prohibit a licensee under this chapter from performing advances in the art or techniques of the licensee’s licensed profession learned through formal or specialized training.
  6. This chapter does not prohibit an individual licensed or registered as a respiratory therapist in another state or country from providing respiratory care in an emergency in this state, providing respiratory care as a member of an organ harvesting team, or from providing respiratory care on board an ambulance as part of the ambulance treatment team.

Source:

S.L. 1985, ch. 493, § 5; 1995, ch. 420, § 4; 2001, ch. 389, § 5; 2005, ch. 372, § 1; 2013, ch. 333, § 4; 2017, ch. 293, § 3, effective August 1, 2017.

43-42-06. Reciprocity.

An applicant for licensure under this chapter may be granted a license upon satisfactory proof to the board that the applicant is licensed to practice respiratory care under the laws of another state which impose substantially the same requirements as this chapter, and upon payment of the annual license fee.

Source:

S.L. 1985, ch. 493, § 6; 2001, ch. 389, § 6.

43-42-07. Penalty.

Any person who practices polysomnography or respiratory care in violation of this chapter is guilty of an infraction.

Source:

S.L. 1985, ch. 493, § 7; 2009, ch. 359, § 11.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-42-08. Criminal history record checks.

The board may require any applicant or licensee under this chapter to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a criminal history record check are the responsibility of the applicant or licensee.

Source:

S.L. 2011, ch. 327, § 2.

CHAPTER 43-43 Environmental Health Practitioners

43-43-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Advisory board” means the following or their appointed agents: state health officer as chairperson, the commissioner of the North Dakota department of agriculture, and the president of the North Dakota environmental health association. The state health officer shall appoint one agent of a district or local health unit environmental health practitioner and one consumer.
  2. “Environmental health practitioner” means a person who, by environmental health science education and experience, is qualified and licensed under this chapter to practice environmental health.
  3. “Practice of environmental health” means any service or work, such as consultation, investigation, evaluation, surveys, and inspections in the environmental program areas of food, beverage, housing, and lodging sanitation.

Source:

S.L. 1985, ch. 494, § 1; 1987, ch. 263, § 28; 1987, ch. 535, § 1; 1993, ch. 218, § 9.

43-43-02. Licensure required.

No person may engage in the practice of environmental health, nor use the title “environmental health practitioner” or the initials “E.H.P.” or otherwise hold out as able to engage in the practice of environmental health unless the person is licensed pursuant to this chapter.

Source:

S.L. 1985, ch. 494, § 2.

43-43-03. Advisory board duties and compensation. [Effective through August 31, 2022]

The advisory board shall meet at the request of the state health officer to assist in implementation of duties as defined in section 43-43-04. The advisory board must be reimbursed for any necessary expenses, but shall serve without further compensation except as may be authorized and fixed by the state health officer by rule.

Source:

S.L. 1985, ch. 494, § 3; 1987, ch. 535, § 2.

43-43-03. Advisory board duties and compensation. [Effective September 1, 2022]

The advisory board shall meet at the request of the state health officer to assist in implementation of duties as defined in section 43-43-04. The advisory board must be reimbursed for any necessary expenses, but shall serve without further compensation except as may be authorized and fixed by the department of health and human services by rule.

Source:

S.L. 1985, ch. 494, § 3; 1987, ch. 535, § 2; 2021, ch. 352, § 368, effective September 1, 2022.

43-43-04. Powers and duties of state health officer. [Effective through August 31, 2022]

The state health officer shall adopt rules consistent with and necessary for the implementation and enforcement of this chapter, including rules concerning the:

  1. Qualifications and requirements for licensure under this chapter.
  2. Application for licensure and renewal of license.
  3. Licensure.
  4. Fees that may not exceed fifty dollars for licensure fees.
  5. Scope of practice.
  6. Ethical standards of conduct.
  7. Continuing competency and education requirements.
  8. Grievances and complaints.
  9. Reimbursement of advisory board expenses.
  10. Emergency exemptions as to requirements for licensure under this chapter.
  11. Qualifications and requirements for specialty licenses or credentials within the scope of practice of an environmental health practitioner, including specialty licenses or credentials for limited practice areas.

Source:

S.L. 1985, ch. 494, § 4; 1987, ch. 535, § 3; 2003, ch. 377, § 1.

43-43-04. Powers and duties of department of health and human services. [Effective September 1, 2022]

The department of health and human services shall adopt rules consistent with and necessary for the implementation and enforcement of this chapter, including rules concerning the:

  1. Qualifications and requirements for licensure under this chapter.
  2. Application for licensure and renewal of license.
  3. Licensure.
  4. Fees that may not exceed fifty dollars for licensure fees.
  5. Scope of practice.
  6. Ethical standards of conduct.
  7. Continuing competency and education requirements.
  8. Grievances and complaints.
  9. Reimbursement of advisory board expenses.
  10. Emergency exemptions as to requirements for licensure under this chapter.
  11. Qualifications and requirements for specialty licenses or credentials within the scope of practice of an environmental health practitioner, including specialty licenses or credentials for limited practice areas.

Source:

S.L. 1985, ch. 494, § 4; 1987, ch. 535, § 3; 2003, ch. 377, § 1; 2021, ch. 352, § 369, effective September 1, 2022.

43-43-05. Exception from requirements.

The state health officer must license all persons actually engaged in the practice of environmental health in this state upon receipt of proof of a bona fide practice in this state; however, the applicant must file an application and present such proof prior to July 1, 1986, or become subject to licensure requirements of this chapter.

Source:

S.L. 1985, ch. 494, § 5; 1987, ch. 535, § 4.

43-43-06. Environmental health practitioner licensure fee administration fund. [Effective through August 31, 2022]

There must be maintained in the state treasury a special fund to be known as the environmental health practitioner licensure fee administrative fund. All money deposited or paid into this fund must be continuously available to the state health officer for reimbursement to the advisory board, and may not lapse at any time or be transferred to any other fund. The fund must consist of any money collected by the state health officer in accordance with section 43-43-04.

Source:

S.L. 1985, ch. 494, § 6; 1987, ch. 535, § 5.

43-43-06. Environmental health practitioner licensure fee administration fund. [Effective September 1, 2022]

There must be maintained in the state treasury a special fund to be known as the environmental health practitioner licensure fee administrative fund. All money deposited or paid into this fund must be continuously available to the department of health and human services for reimbursement to the advisory board, and may not lapse at any time or be transferred to any other fund. The fund must consist of any money collected by the department of health and human services in accordance with section 43-43-04.

Source:

S.L. 1985, ch. 494, § 6; 1987, ch. 535, § 5; 2021, ch. 352, § 370, effective September 1, 2022.

43-43-07. Denial, suspension, revocation of license. [Effective through August 31, 2022]

The state health officer may refuse to issue or renew a license or may suspend or revoke a license when the licensee or applicant for license has engaged in unprofessional conduct. Unprofessional conduct includes:

  1. Obtaining a license by means of fraud, misrepresentation, or concealment of material facts.
  2. Engaging in unprofessional conduct, as defined by the rules adopted by the state health officer, or violating the code of ethics adopted by the state health officer.
  3. Conviction of an offense, as defined by section 12.1-01-04, determined by the state health officer to have a direct bearing on the person’s ability to serve the public in the capacity of a licensed environmental health practitioner; or the state health officer determines that such applicant or licensee, following conviction of any offense, is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. Violation of any order or rule adopted by the state health officer.
  5. Violation of this chapter.

The person may apply to the state health officer for reinstatement after one year from the date of revocation of a license. The state health officer may accept or reject an application for reinstatement, or may require conditions and an examination for reinstatement.

Source:

S.L. 1985, ch. 494, § 7; 1987, ch. 535, § 6.

43-43-07. Denial, suspension, revocation of license. [Effective September 1, 2022]

The department of health and human services may refuse to issue or renew a license or may suspend or revoke a license when the licensee or applicant for license has engaged in unprofessional conduct. Unprofessional conduct includes:

  1. Obtaining a license by means of fraud, misrepresentation, or concealment of material facts.
  2. Engaging in unprofessional conduct, as defined by the rules adopted by the department of health and human services, or violating the code of ethics adopted by the department of health and human services.
  3. Conviction of an offense, as defined by section 12.1-01-04, determined by the department of health and human services to have a direct bearing on the person’s ability to serve the public in the capacity of a licensed environmental health practitioner; or the department of health and human services determines that such applicant or licensee, following conviction of any offense, is not sufficiently rehabilitated under section 12.1-33-02.1.
  4. Violation of any order or rule adopted by the department of health and human services.
  5. Violation of this chapter.

The person may apply to the department of health and human services for reinstatement after one year from the date of revocation of a license. The department of health and human services may accept or reject an application for reinstatement, or may require conditions and an examination for reinstatement.

Source:

S.L. 1985, ch. 494, § 7; 1987, ch. 535, § 6; 2021, ch. 352, § 371, effective September 1, 2022.

43-43-08. Penalty.

Any person who violates this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1985, ch. 494, § 8.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-44 Dietitians and Nutritionists

43-44-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the board of dietetic practice.
  2. “Board for certification of nutrition specialists” means the entity that serves as the credentialing agency for certified nutrition specialists.
  3. “Certified nutrition specialist” means an individual certified as a nutrition specialist by the board for certification of nutrition specialists that authorizes the individual to use the title “certified nutrition specialist” and the abbreviation “CNS” to indicate the individual is a certified nutrition specialist.
  4. “Commission on dietetic registration” means the credentialing agency for the academy of nutrition and dietetics.
  5. “Degree” means a degree received from a college or university that was a United States regionally accredited body recognized by the council for higher education accreditation and the United States department of education at the time the degree was received or validated foreign equivalent.
  6. “Dietetics” means the integration, application, and communication of practice principles derived from the food, nutrition, social, business, and basic sciences to achieve and maintain the optimal nutrition status of an individual. The primary function of the practice of dietetics is the provision of medical nutrition therapy.
  7. “Evidence-based” or “evidence-based practice” means an approach to health care through which health practitioners use the best evidence available, to make decisions for individuals, groups, and populations.
  8. “Foreign practitioner” means an individual who holds and maintains a license in good standing to engage in the practice of dietetics and nutrition in a state or jurisdiction other than this state and who is not the subject of a pending disciplinary action in any state or jurisdiction.
    1. “General nonmedical nutrition information” may include information on any of the following:
      1. Principles of good nutrition, menu planning, and food preparation.
      2. Food that should be included in the normal daily diet.
      3. The essential nutrients needed by the human body.
      4. The recommended amounts of essential nutrients in the human body.
      5. The actions of nutrients in the human body.
      6. The effects of deficiencies or excesses of nutrients in the human body.
      7. Foods, herbs, and supplements that are good sources of essential nutrients in the human body.
    2. The term does not include the provision of medical nutrition therapy.
  9. “General supervision” means the qualified supervisor is onsite and present where nutrition care services are provided or is immediately available to the individual being supervised by means of electronic communications and maintains continual involvement in the appropriate aspects of patient care, and has primary responsibility for all nutrition care services rendered by an individual.
  10. “Licensed nutritionist” means an individual licensed as a nutritionist under this chapter who may be referred to or hold oneself out as a nutritionist.
  11. “Licensed registered dietitian” means an individual licensed as a dietitian under this chapter who may be referred to or hold oneself out as a dietitian, dietitian nutritionist, nutritionist, or a dietician.
  12. “Medical nutrition therapy” means the provision of nutrition care services for the treatment or management of a disease or medical condition. The term includes the provision of any part or all of the following services:
    1. Interpreting anthropometric, biochemical, clinical, and dietary data in acute and chronic disease states and recommending or ordering nutrient needs based on the dietary data, including tube feedings and parenteral nutrition.
    2. Food and nutrient counseling, including food and prescription drug interactions.
    3. Developing and managing food service operations, including operations for the management or treatment of disease or medical conditions, with the primary function of nutrition care or recommending or ordering therapeutic diets.
    4. Medical weight control.
  13. “Medical weight control” means medical nutrition therapy for the purpose of reducing, maintaining, or gaining weight.
  14. “Nonmedical weight control” means the provision of services for the purpose of reducing, maintaining, or gaining weight which does not constitute the treatment of a disease or medical condition. The term includes weight control services for healthy population groups to achieve or maintain a healthy weight.
  15. “Nutrition” means the science of food and nutrients, including the action, interaction, and balance of food and nutrients in relation to health and disease and the process by which humans ingest, absorb, transport, utilize, and excrete food substances. The primary function of the practice of nutrition is the provision of medical nutrition therapy.
  16. “Nutrition assessment” means the systematic process of obtaining, verifying, and interpreting biochemical, anthropometric, physical, nutrigenomic, and dietary data to make decisions about the nature and cause of nutrition-related problems. The mere collection of data itself does not constitute nutrition assessment. The term includes an ongoing, dynamic process that:
    1. Involves an initial data collection and a reassessment and analysis of client or community needs; and
    2. Provides the foundation for nutrition diagnosis and nutritional recommendations, including enteral and parenteral nutrition.
    1. “Nutrition care services” means the provision of any part or all of the following services within a systematic process:
      1. Assessing and evaluating the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting, including ordering laboratory tests to check and track nutrition status, creating dietary plans and orders, and monitoring the effectiveness of the plans and orders.
      2. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
      3. Providing nutrition counseling in health and disease.
      4. Developing, implementing, and managing nutrition care systems.
      5. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.
      6. Ordering therapeutic diets.
    2. The term does not include the retail sale of food products or vitamins, the giving of general nonmedical nutrition information, or the providing of nonmedical weight control by unlicensed individuals.
  17. “Nutrition counseling” means the advice and assistance provided by a licensed registered dietitian or licensed nutritionist to an individual or group on nutrition intake by integrating information from the nutrition assessment with information on food and other sources of nutrient and meal preparations consistent with cultural background, socioeconomic status, and therapeutic needs.
  18. “Nutrition diagnosis” means identifying and labeling nutritional problems managed and treated by a licensed registered dietitian or licensed nutritionist. The term does not include the medical differential diagnosis of the health status of an individual.
  19. “Nutrition intervention” means purposefully planned actions and nutrition counseling intended to positively change a nutrition-related behavior, risk factor, environmental condition, or aspect of the health status for an individual.
  20. “Nutrition monitoring and evaluation” means identifying patient outcomes relevant to a nutrition diagnosis and comparing the outcomes with the patient’s previous health status, intervention goals, or reference standards to determine the progress made in achieving desired outcomes of nutrition care and whether planned interventions should be continued or revised.
  21. “Onsite supervision” means the qualified supervisor is present in the department or facility or virtual platform at which nutrition care services are provided, is immediately available to the individual being supervised and maintains continual involvement in the appropriate aspects of patient care, and has primary responsibility for all nutrition care services rendered by an individual.
  22. “Practice of dietetics and nutrition” means the integration and application of scientific principles derived from the study of food, nutrition, biochemistry, metabolism, nutrigenomics, physiology, food management, and behavioral and social sciences in achieving and maintaining health throughout the life span and in providing nutrition care services in person and via telehealth, including medical nutrition therapy, for the purpose of disease management and prevention, or to treat or rehabilitate an illness, injury, or condition.
  23. “Provisional license” means a license granted to an applicant who has submitted the information required in section 43-44-12 and applied for examination but has not completed the examination successfully yet.
  24. “Qualified supervisor” means:
    1. If supervising the provision of medical nutrition therapy, an individual who is:
      1. A certified nutrition specialist or a registered dietitian nutritionist;
      2. A licensed nutritionist who has met the education and experience qualifications under section 43-44-07, a licensed dietitian nutritionist, or a licensed registered dietitian; or
      3. A health care provider licensed or otherwise authorized under the laws of any state to provide nutrition care services to treat or manage a disease or medical condition.
    2. If supervising the provision of nutrition care services that do not constitute medical nutrition therapy, an individual who either meets the requirements of paragraph 1 of subdivision a or an individual with at least three years of clinical nutrition experience who holds a master’s or doctoral degree with a major course of study in dietetics, human nutrition, foods and nutrition, community nutrition, public health nutrition, naturopathic medicine, nutrition education, nutrition, nutrition science, clinical nutrition, applied clinical nutrition, nutrition counseling, nutrition and functional medicine, nutritional biochemistry, nutrition and integrative health, or an equivalent course of study as approved by the board.
  25. “Registered dietitian” or “registered dietitian nutritionist” means an individual registered as a dietitian or a dietitian nutritionist with the commission on dietetic registration which authorizes the individual to use the title “registered dietitian nutritionist” or “registered dietitian” and the abbreviation “RDN” or “RD”.
  26. “Telehealth” means the use of electronic information and telecommunications technologies to provide services under this chapter to support clinical health care, patient and professional health-related education, public health, and health administration between a licensee in one location and an individual in another location.
  27. “Therapeutic diet” means a diet intervention prescribed by a physician or other authorized nonphysician practitioner which provides food or nutrients via oral, enteral, or parenteral routes, or a combination thereof, as part of treatment of disease or diagnosed clinical conditions to modify, eliminate, decrease, or increase identified micronutrients and macronutrients in the diet .

Source:

S.L. 1985, ch. 495, § 1; 1989, ch. 535, § 1; 2021, ch. 323, § 2, effective July 1, 2021.

43-44-02. Board of dietetic practice — Membership — Terms — Meetings.

  1. The governor shall appoint a board of dietetic practice, consisting of five members, all of whom must be residents of the state at the time of their appointment. The individuals appointed must have been engaged in the teaching or rendering of dietetics or nutrition to the public, or in research in dietetics or nutrition for three years immediately preceding appointment. Three board members must be licensed registered dietitians and one member must be a licensed nutritionist. One member must be appointed to represent consumers of health services.
  2. Appointments are for terms of three years, but no individual may be appointed to serve more than two consecutive full or partial terms. Terms begin on the first day of September and end on the last day of August or until successors are appointed. An appointment of any member to serve out the remaining term of any position on the board which becomes vacant must be made in the same manner as the original appointment for that position.
  3. The governor may remove any board member for good cause after giving that member a written statement of the reasons for removal and after that member has had an opportunity for a hearing.
  4. The board shall meet during September of each calendar year and select a chairperson. At least one additional meeting must be held before September of the next calendar year. Other meetings may be convened at the call of the chairperson or the written request of any two board members. All meetings of the board are open to the public, except that the board may hold closed sessions to review patient medical records, review patient testimony, and for other reasons as referenced in section 44-04-19.2.
  5. Members of the board receive no compensation for their services, but are entitled to mileage and travel expenses as provided in sections 54-06-09 and 44-08-04, and per diem as set by the board.

Source:

S.L. 1985, ch. 495, § 2; 1989, ch. 535, § 2; 2021, ch. 323, § 3, effective July 1, 2021.

43-44-03. Board powers and duties.

  1. The board shall administer, coordinate, and enforce this chapter, evaluate the qualifications, and approve an examination for licensure under this chapter. The board shall keep any records and minutes as are necessary to carry out the board’s functions.
  2. The board may:
    1. Issue subpoenas, examine witnesses, administer oaths, and investigate allegations of practices violating this chapter.
    2. Adopt rules pursuant to chapter 28-32, to implement this chapter, including rules relating to professional licensure and the establishment of ethical standards of practice for licensed registered dietitians and licensed nutritionists.
    3. Provide interpretive guidance on this chapter.

Source:

S.L. 1985, ch. 495, § 3; 2021, ch. 323, § 4, effective July 1, 2021.

43-44-04. Board administrative authority and requirements.

  1. The board may employ an executive secretary and other officers and employees it deems necessary.
  2. The executive secretary shall pay, upon approval of the board, all appropriate expenses incurred by the board in the administration of this chapter.

Source:

S.L. 1985, ch. 495, § 4.

43-44-05. Fees.

The board shall set and collect fees for application, initial license, renewal of license, late renewal, and provisional license. These fees must be set in such an amount not to exceed two hundred fifty dollars as to reimburse the board, to the extent feasible, for the cost of the services rendered. The board shall waive initial licensure and renewal licensure fees for active duty military and active duty military spouses serving in the United States armed forces in North Dakota.

Source:

S.L. 1985, ch. 495, § 5; 2021, ch. 323, § 5, effective July 1, 2021.

43-44-06. License required — Title — Abbreviations.

  1. Use of an earned, federally trademarked nutrition credential is not prohibited, but such use does not give an individual the right to practice dietetics or nutrition, provide medical nutrition therapy, or use the general titles of dietitian or nutritionist, unless an individual is licensed under this chapter. Notwithstanding any law to the contrary, all of the following are permissible:
    1. An individual registered with the commission on dietetic registration may use the title “registered dietitian” and “registered dietitian nutritionist” and the designation of “RD” or “RDN”.
    2. An individual certified by the board of certification of nutrition specialists may use the title “certified nutrition specialist” and the designation “CNS”.
    3. An individual certified by the American clinical board of nutrition may use the title “diplomate, American clinical board of nutrition” and use the designation “DACBN”.
  2. A person not licensed under this chapter may not do any of the following:
    1. Provide medical nutrition therapy with or without compensation.
    2. Use or allow a business entity or a business entity’s employees, agents, or representatives to use any of the following titles or abbreviations in association with a person’s name:
      1. Dietitian nutritionist or nutritionist.
      2. Dietitian or dietician.
      3. Nutrition counselor or nutrition specialist.
      4. LRD, LDN, or LN.
      5. Nutritional therapy practitioner or nutritional therapy consultant.
      6. Certified nutrition therapy practitioner.
      7. Master nutrition therapist.
      8. Licensed dietitian nutritionist, licensed registered dietitian, or licensed nutritionist.
      9. Any other designation, words, letters, or insignia in connection with a name indicating an offer or eligibility to provide medical nutrition therapy or indicating a license to practice dietetics and nutrition or provide medical nutrition therapy unless licensed under this chapter.
  3. This section does not prohibit an individual from using an earned title trademarked by the United States patent and trademark office .

Source:

S.L. 1985, ch. 495, § 6; 1989, ch. 535, § 3; 2021, ch. 323, § 6, effective July 1, 2021.

43-44-07. Requirements for licensure — Licensed nutritionist.

  1. An applicant for licensure as a licensed nutritionist shall file a written application with the board, submit any fees required by the board, and submit proof of completion of the following requirements:
    1. Have received a master’s or doctoral nutrition degree or validated foreign equivalent with a major course of study in human nutrition, foods and nutrition, community nutrition, public health nutrition, nutrition education, nutrition, nutrition science, clinical nutrition, applied clinical nutrition, nutrition counseling, nutrition and functional medicine, nutritional biochemistry, nutrition and integrative health, or a comparable course of study, or a master’s or doctoral degree or validated foreign equivalent, in a field of clinical health care from a college or university accredited at the time of graduation from the appropriate regional accrediting agency recognized by the council on higher education accreditation and the United States department of education, and have completed coursework leading to competence in medical nutrition therapy which must consist of the following courses:
      1. Fifteen semester hours of clinical or life sciences, including such courses as chemistry, organic chemistry, biology, molecular biology, biotechnology, botany, genetics, genomics, neuroscience, experimental science, immunotherapy, pathology, pharmacology, toxicology, research methods, applied statistics, biostatistics, epidemiology, energy production, molecular pathways, hormone and transmitter regulations and imbalance, and pathophysiologic basis of disease. At least three semester hours must be in human anatomy and physiology or the equivalent.
      2. Fifteen semester hours of nutrition and metabolism, including such courses as nutrition assessment, developmental nutrition, nutritional aspects of disease, human nutrition, macronutrients, micronutrients, vitamins and minerals, clinical functional medicine nutrition, molecular metabolism, nutrition, nutritional biochemistry, nutrition and digestive health, and public health nutrition. At least six semester hours must be in biochemistry or an equivalent as approved by the board.
    2. The applicant must have completed a board-approved internship or a documented, supervised practice experience demonstrating competency in nutrition care services and the provision of medical nutrition therapy of not less than one thousand hours including at least two hundred hours of nutrition assessment, two hundred hours of nutrition intervention, education, counseling, or management, and two hundred hours of nutrition monitoring or evaluation. A minimum of seven hundred hours of supervised practice experience is required in professional work settings and no more than three hundred hours can be in alternate supervised experiences such as observational client-practitioner interactions, simulation, case studies, and role playing. This experience must be under the supervision of a qualified supervisor. A qualified supervisor shall provide onsite supervision of an applicant’s supervised practice experience in the provision of medical nutrition therapy and provide general supervision of an applicant’s provision of other nutrition care services that do not constitute medical nutrition therapy.
    3. The applicant meets one of the following criteria:
      1. The applicant has successfully completed a board-approved examination such as the certification examination for nutrition specialists administered by the board for certification of nutrition specialists or the diplomate examination administered by the American clinical board of nutrition; or
      2. The applicant has either a valid certification with the board for certification of nutrition specialists that gives the applicant the right to use the term “certified nutrition specialist” or “CNS” or a valid certification with the American clinical board of nutrition which gives the applicant the right to use the term “diplomate, American clinical board of nutrition” or “DACBN”.
    4. The applicant shall complete a background check or fingerprinting if requested by the board.
  2. An applicant for renewal of a license as a licensed nutritionist:
    1. Shall comply with subsection 1.
    2. Must have satisfactorily completed continuing education requirements as specified and approved by the board.
    3. Shall complete a background check or fingerprinting if requested by the board.

Source:

S.L. 1985, ch. 495, § 7; 2013, ch. 63, § 8; 2021, ch. 323, § 7, effective July 1, 2021.

43-44-08. Requirements for licensure — Licensed registered dietitian.

  1. Applicants for licensure as a licensed registered dietitian shall file a written application with the board, submit any fees required by the board, and submit proof of completion of the following requirements:
    1. Have satisfactorily completed the education and experience requirements for registered dietitians nutritionists approved by the commission on dietetic registration of the academy of nutrition and dietetics or its predecessor or successor organization.
    2. Have satisfactorily completed the examination approved and administered by the commission on dietetic registration of the academy of nutrition and dietetics or its predecessor or successor organization.
    3. Have a current valid registration with the commission on dietetic registration which gives the applicant the right to use the term “registered dietitian” or “registered dietitian nutritionist”.
    4. Complete a background check or fingerprinting if requested by the board.
  2. Applicants for renewal of licensure as a licensed registered dietitian:
    1. Shall comply with subsection 1.
    2. Must have satisfactorily completed continuing education requirements specified by the commission on dietetic registration of the academy of nutrition and dietetics or its predecessor or successor organization.
    3. Shall complete a background check or fingerprinting if requested by the board.

Source:

S.L. 1985, ch. 495, § 8; 2013, ch. 63, § 9; 2021, ch. 323, § 8, effective July 1, 2021.

43-44-09. Waiver of requirements for licensure of dietitians.

Upon application of any person certified by the commission on dietetic registration of the academy of nutrition and dietetics or its predecessor or successor organization, the board may waive the examination, education, and experience requirements and grant the applicant a license if the board determines the requirements for certification are equivalent to the related requirements for licensure in this chapter.

Source:

S.L. 1985, ch. 495, § 9; 2013, ch. 63, § 10; 2021, ch. 323, § 9, effective July 1, 2021.

43-44-09.1. Grandfathering of licensed nutritionists.

An individual who meets the requirements for licensure and holds a license as a licensed nutritionist on July 1, 2021, and is practicing or residing in this state on July 1, 2021, is eligible to maintain and renew a license as a licensed nutritionist if the applicant furnishes evidence satisfactory to the board that the applicant has met continuing education as required by the board.

Source:

S.L. 2021, ch. 323, § 10, effective July 1, 2021.

43-44-09.2. Scope of practice.

  1. A licensed registered dietitian and licensed nutritionist shall provide nutrition care services using systematic, evidence-based, problem-solving methods of the nutrition care process to think critically and make decisions to address nutrition-related problems and provide safe, effective, quality nutrition services and medical nutrition therapy for patients and clients in both clinical and community settings.
  2. A licensed registered dietitian or licensed nutritionist may accept or transmit oral, verbal, delegated, or electronically transmitted orders from the referring provider consistent with applicable laws and rules, including any protocols established to implement medical nutrition therapy.
  3. A licensed registered dietitian or licensed nutritionist may order patient diets, including therapeutic diets, in accordance with the provisions of this chapter. Oral therapeutic diets may be ordered by either a licensed registered dietitian or a licensed nutritionist. Therapeutic diets include enteral and parenteral nutrition therapy, which consist of specialized enteral or intravenous solutions and may be ordered only by an individual licensed under this chapter who also meets one of the following criteria:
    1. The individual is a registered dietitian nutritionist registered with the commission on dietetic registration;
    2. The individual is a certified nutrition support clinician certified by the national board of nutrition support certification; or
    3. The individual meets other requirements as determined by the board, consistent with competencies necessary for evaluating, ordering, and administrating enteral and parenteral nutrition.
  4. This chapter does not limit the ability of any other licensed health care practitioner in this state to order therapeutic diets if the ordering of therapeutic diets falls within the scope of the license held by the health care practitioner.
  5. A licensed registered dietitian or licensed nutritionist who has met the qualifications under section 43-44-07 or 43-44-08 may order medical laboratory tests related to nutritional therapeutic treatments consistent with state law.
  6. A licensed registered dietitian or licensed nutritionist may implement prescription drug dose adjustments for specific disease treatment protocols within the limits of the licensed registered dietitian’s or licensed nutritionist’s knowledge, skills, judgment, and current evidence-informed clinical practice guidelines as indicated in a facility approved protocol and as approved and delegated by the licensed prescriber. This subsection does not allow licensees to prescribe or initiate drug treatment. A licensed registered dietitian and licensed nutritionist may be authorized to prescribe vitamin and mineral supplements or discontinue unnecessary vitamins and minerals.

Source:

S.L. 2021, ch. 323, § 11, effective August 1, 2021.

43-44-10. Persons excepted from license requirement.

This chapter does not prevent or restrict the practice, services, or activities of:

  1. A licensed health care practitioner duly licensed in accordance with title 43 who is acting within the scope of the individual’s licensed profession, consistent with the accepted standards of the practitioner’s profession, if the practitioner does not represent the practitioner as a licensed registered dietitian, nutritionist, or licensed nutritionist.
  2. A student or trainee, working under the onsite supervision of a qualified supervisor while fulfilling an experience requirement or pursuing a course of study to meet the licensure requirements of section 43-44-07 or 43-44-08, for a time period of no more than five years after the student or trainee completed the course requirements for licensure and the student or trainee is designated by a title that clearly indicates that individual’s status as a student or trainee.
  3. An individual providing support activities related to medical nutrition therapy, if the individual works under the general supervision of a registered dietitian licensed by this board, licensed nutritionist licensed by this board, or other health care practitioner licensed by the appropriate North Dakota board whose licensed scope of practice includes the provision of nutrition care services for the purpose of managing a disease or medical condition.
  4. An individual providing nutrition care services for the purpose of treating or managing a disease or medical condition as a duty of serving in the armed forces.
  5. A foreign practitioner providing nutrition care services for the purpose of treating or managing a disease or medical condition in this state if the practitioner is acting within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license if the services are provided through a remote means and are a continuation of an existing relationship between the foreign practitioner and the individual receiving the services which was formed in the state or jurisdiction in which the foreign practitioner is currently licensed.
  6. A foreign practitioner providing nutrition care services for the purpose of treating or managing a disease or medical condition in this state if the practitioner is acting within the scope of practice designated by the foreign practitioner’s license and this title without obtaining a license if the services are provided in consultation with a person licensed by the board and if the foreign practitioner has no direct communication in this state with the individual receiving the services except in the presence of the individual licensed by the board. Both the foreign practitioner and the individual licensed by the board are responsible for the services provided.
  7. An educator who is in the employ of a federal, state, county, or municipal agency, or other political subdivision, or an elementary or secondary school, or an accredited institution of higher education insofar as the activities and services are part of the duties of the employee’s position and do not involve provision of medical nutrition therapy; or who is in the employ or service of a nonprofit organization approved by the board.
  8. An individual having received a baccalaureate degree in home economics or family and consumer sciences, if the individual does not represent that the individual is a licensed registered dietitian, nutritionist, or licensed nutritionist, insofar as the services and activities are within the scope of that individual’s education and training.
  9. An individual who markets or distributes food, food materials, herbs, or dietary supplements, or any individual who engages in the advising of the use of those products, or the preparation of those products, or the counseling of individuals or groups in the selection of products to meet normal nutritional needs, if that individual does not represent that individual is a licensed registered dietitian, nutritionist, or licensed nutritionist.
  10. An individual from providing nutrition information, individualized nutrition recommendations, health coaching, holistic and wellness education, guidance, motivation, behavior change management, nonmedical weight control, or other nutrition care services if the services do not constitute medical nutrition therapy and the individual does not hold the individual out as a licensed registered dietitian, nutritionist, or licensed nutritionist or as a provider of medical nutrition therapy or otherwise violate provisions of this chapter.
  11. An individual providing medical weight control services for individuals with prediabetes or obesity:
    1. Under a program of instruction approved in writing by one of the following:
      1. A licensed registered dietitian or licensed nutritionist in this state;
      2. A dietitian nutritionist or nutritionist licensed in another state that has licensure requirements at least as stringent as the licensure requirements under this chapter, as determined by the board;
      3. A registered dietitian nutritionist; or
      4. A certified nutrition specialist; or
    2. As part of a plan of care overseen by a health care practitioner licensed in this state and acting within the scope of the individual’s licensed profession, consistent with the accepted standards of the practitioner’s profession to provide nutrition care services for the purpose of treatment or management of a disease or medical condition.
  12. An individual who provides nutrition care services without remuneration to family members.

Source:

S.L. 1985, ch. 495, § 10; 1989, ch. 535, § 4; 2013, ch. 63, § 11; 2021, ch. 323, § 12, effective July 1, 2021.

43-44-10.1. Qualified supervision.

  1. A qualified supervisor must be licensed in this state if supervising an applicant providing medical nutrition therapy to an individual in this state. A qualified supervisor who obtained a doctoral degree outside the United States must have a degree validated by the board as equivalent to the doctoral degree conferred by a United States regionally accredited college or university.
  2. The board may adopt rules as necessary and appropriate to implement or clarify onsite supervision.

Source:

S.L. 2021, ch. 323, § 13, effective July 1, 2021.

43-44-11. Issuance of license.

The board shall issue a license to any person who meets the requirements of this chapter upon payment of the prescribed fee.

Source:

S.L. 1985, ch. 495, § 11.

43-44-12. Provisional license.

An applicant for a provisional license shall file a written application with the board, submit any fees required by the board, complete a criminal history background check if requested by the board, and submit evidence of successful completion of the academic and supervised practice requirements during the five-year period after completion of the academic and supervised practice requirements specified under subdivisions a and b of subsection 1 of section 43-44-07 or subdivision a of subsection 1 of section 43-44-08. A provisional license must be available to an applicant with the applicant’s initial application for examination and the applicant may practice only under the supervision of a licensed registered dietitian or a licensed nutritionist who meets requirements under subsection 1 of section 43-44-07. A provisional license expires automatically upon receiving notice of failure of the licensure examination but may be renewed a maximum of one time until the date of the next examination, at which time the provisional license automatically expires and must be surrendered to the board.

Source:

S.L. 1985, ch. 495, § 12; 2021, ch. 323, § 14, effective July 1, 2021.

43-44-13. Reciprocity.

The board shall grant a license to an applicant who presents proof of current licensure in good standing without any limitations on the license, as a dietitian or nutritionist in another state that has licensure requirements considered by the board to be at least as stringent as the requirements for licensure under this chapter.

Source:

S.L. 1985, ch. 495, § 13; 2021, ch. 323, § 15, effective July 1, 2021.

43-44-14. Renewal of license.

Any license issued under this chapter expires one year after it is issued unless renewed in the manner prescribed by the rules of the board. The board may provide for the late renewal of a license upon the payment of a late fee in accordance with its rules, but no late renewal of a license may be granted more than one year after its expiration.

Source:

S.L. 1985, ch. 495, § 14.

43-44-15. Suspension and revocation of license — Refusal to renew.

  1. The board may deny a license, refuse to renew a license, suspend a license, or revoke a license, or may impose probationary conditions on a licensee if the licensee or applicant has been found guilty of unprofessional conduct which has endangered or is likely to endanger the health, welfare, or safety of the public. Unprofessional conduct includes:
    1. Obtaining a license by means of fraud, misrepresentation, or concealment of material facts.
    2. Being guilty of unprofessional conduct as defined by rules adopted by the board, or violating any code of ethics adopted by the board.
    3. Being convicted of an offense, as defined by section 12.1-01-04, that the board determines has a direct bearing upon a person’s ability to serve the public as a licensed registered dietitian or a licensed nutritionist or, following conviction of any offense, if the board determines that the person is not sufficiently rehabilitated under section 12.1-33-02.1.
    4. Violating any lawful order or rule of the board.
    5. Violating this chapter.
  2. A denial, refusal to renew, suspension, revocation, or imposition of probationary conditions upon a licensee may be ordered by the board after a hearing pursuant to rules adopted by the board. An application for reinstatement may be made to the board one year from the date of the revocation of a license. The board may at its discretion accept or reject an application to consider such reinstatement.

Source:

S.L. 1985, ch. 495, § 15; 2013, ch. 63, § 12; 2021, ch. 323, § 16, effective July 1, 2021.

43-44-16. Injunction.

The civil remedy of injunction is available to the board to restrain and enjoin violations of this chapter. The board may apply to an appropriate court for an order enjoining violations of this chapter, and upon a showing by the board that a person has violated or is about to violate this chapter, the court may grant an injunction or a restraining order, or take other appropriate action.

Source:

S.L. 1985, ch. 495, § 16; 2021, ch. 323, § 17, effective July 1, 2021.

43-44-17. Penalty.

A person that violates this chapter is guilty of a class B misdemeanor. Each act of such unlawful practice constitutes a distinct and separate offense.

Source:

S.L. 1985, ch. 495, § 17; 2021, ch. 323, § 18, effective July 1, 2021.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-44-18. Costs.

The board may assess the attorney fees of disciplinary actions against a licensee or person found to be in violation of this chapter or rules adopted by the board. Costs recovered pursuant to this section are the property of the board.

Source:

S.L. 2021, ch. 323, § 19, effective July 1, 2021.

43-44-19. Telehealth.

  1. The provision of medical nutrition therapy and nutrition care services for the purpose of treating or managing a disease or medical condition provided by way of telehealth to an individual in this state is not prohibited under this chapter if:
    1. Telehealth is appropriate for the individual receiving the services;
    2. The level of care provided meets the required level of care for that individual and:
      1. The level of care complies with applicable regulations and laws;
      2. Personal health information is protected; and
      3. Documentation of nutrition care services are included in the medical records of the patient.
  2. An individual providing services regulated by this chapter via telehealth shall comply with, and is subject to, all licensing and disciplinary provisions of this chapter.

Source:

S.L. 2021, ch. 323, § 20, effective July 1, 2021.

43-44-20. Limited practice without a license.

Upon prior written application to the board, a foreign practitioner practicing under this section may provide medical nutrition therapy or nutrition care services for the purpose of treating or managing a disease or medical condition in this state under section 43-51-05 if the practitioner is acting within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license from the board if the services are provided for no more than thirty full or partial days per year. The one-year period commences on the date the written application is approved by the board. An application from a foreign practitioner under this section must include verified documentation from the appropriate licensing authority which identifies the requirements for licensure in that jurisdiction and which confirms that the practitioner is licensed and in good standing in that jurisdiction and any other information requested by the board. The board may require payment of a fee of twenty-five dollars or other fee established by the board by administrative rule, not to exceed the higher of twenty-five dollars or one-tenth of the fee for an annual license from the board, as a condition of approving an application under this section. A foreign practitioner is subject to the regulatory and disciplinary provisions of section 43-51-08 and this chapter.

Source:

S.L. 2021, ch. 323, § 21, effective July 1, 2021.

43-44-21. Criminal history record checks.

  1. The board may require an applicant for licensure or renewal to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. Refusal to consent to a criminal history record check may constitute grounds for the board to deny licensure to an applicant. All costs associated with obtaining a background check are the responsibility of the applicant.
  2. The board may request a criminal history record check for an applicant returning to active status as a licensed registered dietitian or licensed nutritionist.

Source:

S.L. 2021, ch. 323, § 22, effective July 1, 2021.

CHAPTER 43-45 Addiction Counselors

43-45-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Addiction counseling” means the provision of counseling or assessment of an individual regarding a substance-related or addictive disorder identified by the “Diagnostic and Statistical Manual of Mental Disorders”, American psychiatric association, fifth edition, text revision (2013).
  2. “Board” means the board of addiction counseling examiners.
  3. “Clinical training” means training in addiction counseling, approved by the board.
  4. “Internship” means work experience in a licensed addiction treatment facility under the supervision of a clinical supervisor registered by the board.
  5. “Licensee” means an individual licensed by the board to practice addiction counseling.
  6. “Private practice of addiction counseling” means the independent practice of addiction counseling by a qualified individual who is self-employed on a full-time or part-time basis and is responsible for that independent practice. Consultation services provided to an organization or agency are not the private practice of addiction counseling.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 1; 2007, ch. 383, § 1; 2017, ch. 298, § 1, effective August 1, 2017.

43-45-02. Board of addiction counseling examiners — Composition.

The governor shall appoint a seven-member board of addiction counseling examiners. The membership must include:

  1. Five members who are licensees actively engaged in the practice of addiction counseling, one of whom must be actively engaged in the private practice of addiction counseling.
  2. Two members who are laypersons.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 2; 2007, ch. 383, § 2; 2017, ch. 298, § 2, effective August 1, 2017.

43-45-03. Board member terms.

The governor shall appoint new board members. Appointments must be for three-year terms, but an individual may not be appointed to serve for more than two consecutive terms. Terms begin on the first day of the calendar year and end on the last day of the calendar year or until successors are appointed.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 3; 2007, ch. 383, § 3; 2017, ch. 298, § 3, effective August 1, 2017.

43-45-04. Board power, duties, and authority.

  1. The board shall:
    1. Administer and enforce the provisions of this chapter.
    2. Evaluate the qualifications of applicants for a license to practice addiction counseling and issue addiction counselor, licensed clinical addiction counselor, and masters addiction counselor licenses under this chapter.
    3. Establish ethical standards of practice for a licensee to practice addiction counseling in this state.
    4. Establish continuing education requirements and approve providers of continuing education.
    5. Approve clinical training programs.
    6. Register clinical trainees and addiction counselor trainees.
    7. Register interns.
    8. Register clinical supervisors.
    9. Register licensees for private practice.
    10. Approve and administer examinations.
    11. Periodically evaluate initial licensure coursework requirements and clinical training requirements to ensure the requirements are up to date and do not serve as an undue barrier to licensure.
  2. The board may:
    1. Adopt rules under chapter 28-32 to implement this chapter.
    2. Issue subpoenas, examine witnesses, and administer oaths, and may investigate allegations of practices violating the provisions of this chapter.
    3. Recommend prosecution for violations of this chapter to the appropriate state’s attorney.
    4. Recommend the attorney general bring civil actions to seek injunctive and other relief against violations of this chapter.
    5. Collect fees for examinations, initial licensures, renewal of licenses, late renewals, private practice registrations, renewal of private practice registrations, approval of continuing education providers, and administrative fees. The fees must be established by rule in amounts necessary to compensate the board for administration and enforcement of this chapter.
    6. Employ persons to assist the board in carrying out the board’s duties under this chapter.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 4; 2007, ch. 383, § 4; 2015, ch. 307, § 1, effective July 1, 2015; 2017, ch. 298, § 4, effective August 1, 2017.

43-45-05. Board meetings.

  1. The board shall meet at least quarterly. A majority of the members constitute a quorum.
  2. Each board member shall serve without compensation but is entitled to receive expenses as provided in section 54-06-09.

Source:

S.L. 1987, ch. 536, § 4; 2007, ch. 383, § 5; 2017, ch. 298, § 5, effective August 1, 2017.

43-45-05.1. Initial licenses — Licensure of applicant licensed in another jurisdiction.

  1. The board shall issue an initial license as an addiction counselor, licensed clinical addiction counselor, or masters addiction counselor to an applicant who has met all of the following requirements:
    1. Successfully completed board-approved coursework at an accredited college or university.
    2. Successfully completed one or more oral or written examinations approved by the board for this purpose.
    3. Successfully completed a clinical training program approved by the board or accumulated experience as established by the board by rule.
    4. Satisfied to the board that the applicant agrees to adhere to the code of professional conduct adopted by the board.
  2. For the clinical training program or accumulated experience required of an intern seeking initial licensure, at least fifty percent of the required supervision must be provided by a supervising licensed addiction counselor, and the additional supervision may be with other professionals who are designated by the supervising addiction counselor, approved by the board, and competent in the area of practice being supervised. The other professional must be registered as a clinical supervisor by the board that licenses the other professional.
  3. The board may issue a license to an applicant for licensure who is in good standing as a licensed, approved, or certified addiction counselor, licensed clinical addiction counselor, or masters addiction counselor under the laws of another jurisdiction:
    1. Upon satisfactory proof to the board the laws of the other jurisdiction impose at least substantially the same requirements imposed under this chapter; or
    2. Upon a determination by the board the applicant possesses qualifications or experiences in the practice of addiction counseling which are substantially similar to the minimum requirements for licensure under this chapter.
  4. If the board denies a licensure application, the board shall notify the applicant in writing of the reasons for denial and of the applicant’s right to a hearing before the board, under chapter 28-32, if a hearing is requested within thirty days.

Source:

S.L. 1993, ch. 438, § 8; 2003, ch. 378, § 1; 2007, ch. 383, § 6; 2017, ch. 298, § 6, effective August 1, 2017; 2019, ch. 367, § 1, effective August 1, 2019.

43-45-05.2. Representation to the public.

  1. A person may not represent to the public that the person is an addiction counselor, a licensed clinical addiction counselor, or a masters addiction counselor or engage in the practice of addiction counseling in this state unless the person is a licensee.
  2. The license issued by the board under the provisions of this chapter must be prominently displayed at the principal place of business where the licensee practices.

Source:

S.L. 1993, ch. 438, § 6; 2017, ch. 298, § 7, effective August 1, 2017.

43-45-05.3. Private practice of addiction counseling.

A person may not engage in the private practice of addiction counseling unless that person is an individual registered with the board as eligible for private practice under criteria established by board rule.

Source:

S.L. 1993, ch. 438, § 7; 2007, ch. 383, § 7; 2017, ch. 298, § 8, effective August 1, 2017.

43-45-05.4. Addiction counseling internship — Loan program — Revolving fund — Continuing appropriation.

    1. The Bank of North Dakota shall develop and implement a program under which loans may be provided to qualified individuals participating in a paid or unpaid internship at a licensed substance abuse treatment facility in this state, in order to obtain licensure by the board.
    2. The Bank of North Dakota shall determine all terms applicable to the time and manner in which loans made under this section must be repaid.
    3. Interest on outstanding loans under this section must accrue at the Bank of North Dakota’s current base rate, but may not exceed six percent per annum.
    4. The maximum loan for which an applicant may qualify under this section is seven thousand five hundred dollars.
    5. This subsection is applicable only to individuals beginning an internship after June 30, 2015.
  1. The Bank of North Dakota shall maintain a revolving loan fund for the purpose of making loans under this section. All moneys transferred into the fund, interest upon moneys in the fund, and payments to the fund of principal and interest on loans under this section are appropriated to the Bank on a continuing basis.

History. S.L. 2015, ch. 307, § 2, effective July 1, 2015; 2017, ch. 298, § 9, effective August 1, 2017.

43-45-06. Addiction counseling practice — Exemptions.

  1. This chapter may not be construed to prevent an individual from doing work within the standards and ethics of that individual’s profession if that individual does not represent to the public, by title or by use of the initials L.A.C., L.C.A.C., or M.A.C., that the individual is engaging in addiction counseling.
  2. This chapter may not be construed to prevent addiction counseling trainees or interns in board-approved programs from engaging in addiction counseling related to training.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 5; 2007, ch. 383, § 8; 2017, ch. 298, § 10, effective August 1, 2017.

43-45-07. Renewal of license.

  1. All licenses are effective when granted by the board.
  2. All licenses issued by the board expire on December thirty-first of every odd-numbered year.
  3. A license may be renewed by payment of the renewal fee and completion of the continuing education requirements set by the board, provided the applicant’s license is not currently revoked or grounds for denial under section 43-45-07.1 do not exist.
  4. At the time of renewal the board shall require each applicant to present satisfactory evidence the applicant completed the continuing education requirements specified by the board.
  5. If the completed application for renewal is not received by December first of the odd-numbered year, a late fee will be charged.
  6. If the completed application for renewal is not received on or before the expiration date, the license expires and the individual may not practice addiction counseling. The license may be renewed within thirty days from the date of expiration of the license if the completed application for renewal and the late fee are received within thirty days from the date of expiration of the license.
  7. If a completed application for renewal of license is not received within thirty days from the date of expiration of the license, relicensure requires the former licenseholder to reapply for licensure.
  8. The board may extend the renewal deadline for an applicant having proof of medical or other hardship rendering the applicant unable to meet the renewal deadline.

Source:

S.L. 1987, ch. 536, § 4; 1993, ch. 438, § 9; 2007, ch. 383, § 9; 2017, ch. 298, § 11, effective August 1, 2017.

43-45-07.1. Grounds for disciplinary proceedings.

  1. The board may deny an application and may refuse to renew, suspend, revoke, or place on probationary status any license issued under this chapter on proof at a hearing the applicant or holder of the license engaged in unprofessional conduct. Unprofessional conduct includes:
    1. Obtaining an initial license or renewal by means of fraud, misrepresentation, or concealment of material facts.
    2. Violating rules set by the board.
    3. Violating a provision of this chapter.
    4. Violating the professional code of conduct as adopted by the board.
    5. Being adjudged guilty of an offense determined by the board to have a direct bearing on an applicant’s or holder of the license’s ability to provide addiction counseling to the public as a licensee or being adjudged guilty of any offense and being insufficiently rehabilitated as determined by the board under section 12.1-33-02.1.
  2. One year from the date of the revocation, a former licenseholder may make application for initial licensure.

Source:

S.L. 1993, ch. 438, § 10; 2003, ch. 378, § 2; 2017, ch. 298, § 12, effective August 1, 2017.

43-45-07.2. Reporting obligations.

  1. A person with knowledge of any conduct constituting grounds for discipline under this chapter may report the violation to the board.
  2. A hospital, clinic, or other health care facility, institution, or organization shall report to the board any action taken by the hospital, clinic, or other health care facility, institution, or organization to revoke, suspend, restrict, or condition a licensee’s privilege to practice or treat patients in the hospital, clinic, or other health care facility or institution, or as part of the organization, any denial of privileges or any other disciplinary action.

Source:

S.L. 1993, ch. 438, § 11; 2017, ch. 298, § 13, effective August 1, 2017.

43-45-07.3. Complaints — Investigations.

  1. A person may file a written complaint with the board citing specific allegations of unprofessional conduct by a licensee. The board shall notify the licensee of the complaint and request a written response from the licensee.
  2. The board may investigate a complaint on its own motion, without requiring the identity of the complainant to be made a matter of public record, if the board concludes good cause exists for preserving the confidentiality of the complainant.
  3. A licensee who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any reasonable question raised by or on behalf of the board relating to the subject of the investigation, and providing copies of patient records when reasonably requested by the board and accompanied by the appropriate release.
  4. In order to pursue the investigation, the board may subpoena and examine witnesses and records, including patient records, and copy, photograph, or take samples. The board may require the licensee to give statements under oath, to submit to a physical or mental examination, or both, by a physician or physicians and other qualified evaluation professionals selected by the board if it appears to be in the best interest of the public that this evaluation be secured. A written request from the board constitutes authorization to release information. The patient records released to the board are not public records.
  5. Unless there is a patient release on file allowing the release of information at the public hearing, all patient records acquired by the board in the board’s investigation are confidential. All board meetings at which patient testimony or records are taken or reviewed are confidential and closed to the public. If no patient testimony or records are taken or reviewed, the remainder of the meeting is an open meeting unless a specific exemption is otherwise applicable.

Source:

S.L. 1993, ch. 438, § 12; 2007, ch. 383, § 10; 2017, ch. 298, § 14, effective August 1, 2017.

43-45-07.4. Licensed clinical addiction counselor.

  1. Under section 43-45-05.1, the board shall issue an initial license as a licensed clinical addiction counselor to a qualified applicant who:
    1. Applies for licensure under this section before January 1, 2024;
    2. On December 31, 2018, was licensed in this state as an addiction counselor; and
    3. Completed ten thousand hours of full-time clinical experience as a licensed addiction counselor.
  2. The scope of practice of a licensed clinical addiction counselor is the same as the scope of practice of a masters addiction counselor.

History. S.L. 2017, ch. 298, § 15, effective August 1, 2017.

43-45-08. Penalty.

Any person who violates subsection 1 of section 43-45-05.2 is guilty of a class B misdemeanor.

Source:

S.L. 1987, ch. 536, § 4; 2009, ch. 359, § 12.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-46 Peer Assistance Entity Agreements

43-46-01. Definitions.

  1. “Board” means:
    1. The board of registry in podiatry;
    2. The state board of chiropractic examiners;
    3. The state board of funeral service;
    4. The North Dakota board of nursing;
    5. The North Dakota state board of optometry;
    6. The state board of pharmacy;
    7. The North Dakota board of medicine;
    8. The North Dakota board of massage therapy;
    9. The state examining committee for physical therapists;
    10. The state board of dental examiners;
    11. The state board of veterinary medical examiners;
    12. The North Dakota state board of psychologist examiners;
    13. The board of hearing aid specialists;
    14. The North Dakota state board of examiners for nursing home administrators;
    15. The state board of examiners of audiology and speech pathology;
    16. The North Dakota board of athletic trainers;
    17. The board of occupational therapy practice;
    18. The North Dakota board of social work examiners;
    19. The North Dakota state board of respiratory care;
    20. The board of dietetic practice;
    21. The board of addiction counseling examiners; and
    22. Any health care-related board granted licensing authority by the legislative assembly after July 1, 1989.
  2. “Peer assistance entity” means an organization, a program, or a committee or a professional association which is designed to address the issues of alcoholism and other drug dependency and impairment affecting practitioners of the health care professions.

Source:

S.L. 1989, ch. 536, § 1; 2001, ch. 389, § 7; 2003, ch. 372, § 13; 2015, ch. 297, § 36, effective August 1, 2015.

43-46-02. Agreements with peer assistance entities.

  1. The board may enter into agreements with peer assistance entities to undertake those functions and responsibilities specified in the agreements which assist the board in performing its duties, implementing disciplinary actions or sanctions, and in otherwise addressing potential or confirmed problems of alcohol or drug abuse and impairment regarding board licentiates.
  2. To fund the activities of a peer assistance entity as specified and undertaken under an agreement, the board may annually allocate to the entity a fixed portion of each licentiate registration or licensure fee, or any portion of additional funds available to the board from other sources.

Source:

S.L. 1989, ch. 536, § 1.

CHAPTER 43-47 Counselors

43-47-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the board of counselor examiners.
  2. “Counseling” means the application of human development and mental health principles in a therapeutic process and professional relationship to assist individuals, couples, families, and groups in achieving more effective emotional, mental, marital, family, and social or educational development and adjustment. The goals of professional counseling are to:
    1. Facilitate human development and adjustment throughout the lifespan;
    2. Prevent, assess, and treat emotional, mental, or behavioral disorder and distress which interferes with mental health;
    3. Conduct assessments for the purpose of establishing treatment goals and objectives; and
    4. Plan, implement, and evaluate treatment plans using professional counseling strategies and interventions.
  3. “Counselor” means a person who has been granted either a professional counselor or associate professional counselor license by the board.
  4. “Licensed associate professional counselor” means a person who has been granted an associate professional license by the board to offer and conduct counseling under the supervision of a licensed professional counselor or such other person meeting the requirements of supervising professional set by the board.
  5. “Licensed professional counselor” means a person who is trained in counseling or a related human service field and has been granted a professional counselor license by the board.

Source:

S.L. 1989, ch. 537, § 1; 1995, ch. 421, § 1; 1997, ch. 380, § 1.

43-47-02. Board of counselor examiners — Qualifications — Appointment — Term of office — Compensation.

  1. The governor shall appoint the board of counselor examiners which consists of five members, including two practicing counselors, one counselor educator, and two members of the public.
  2. Members of the board are appointed for terms of three years, except of those first appointed, one must be appointed for a term of one year, two must be appointed for terms of two years, and two must be appointed for terms of three years. Each member holds office until the member’s successor is duly appointed. The governor may remove any member for misconduct, incompetency, or neglect of duty after providing the member with a written statement of the charges and an opportunity for a hearing.
  3. The board shall annually select a chairman from among its members. The board shall meet at least twice a year. Additional meetings may be held at the discretion of the chairman or upon written request of any three members of the board.
  4. Each member shall serve without compensation but is entitled to receive expenses as provided in section 54-06-09 and per diem as must be fixed by the board.

Source:

S.L. 1989, ch. 537, § 1.

43-47-03. Duties and responsibilities of board.

In addition to the duties set forth elsewhere in this chapter, the board shall:

  1. Publish an annual list of the names and addresses of all persons licensed under this chapter.
  2. Approve and administer an examination for counselors.
  3. Set, by rule, and collect a fee for the filing of each application for a license under this chapter and set, by rule, and collect a fee for the renewal of a license under this chapter.
  4. Deposit and disburse all fees and moneys collected by the board in accordance with section 54-44-12.
  5. Establish continuing education requirements for license renewal.
  6. Issue provisional or probationary licenses.
  7. Establish a code of ethics for the practice of counseling.

Source:

S.L. 1989, ch. 537, § 1; 1997, ch. 380, § 2; 2011, ch. 328, § 2.

43-47-03.1. Authority to appoint or employ.

The board may appoint or employ persons to assist the board in carrying out its duties under this chapter.

Source:

S.L. 1997, ch. 380, § 3.

43-47-04. Representation to the public.

Only persons licensed under this chapter may use the title “professional counselor” or “associate professional counselor”, or the abbreviations “LPC” or “LAPC”. The license issued by the board must be prominently displayed at the principal place of business of the counselor.

Source:

S.L. 1989, ch. 537, § 1; 1995, ch. 421, § 2.

43-47-05. Counseling practice — Exceptions.

  1. This chapter does not prevent any person licensed by the state from doing work within the standards and ethics of that person’s profession, if that person does not represent to the public that the person is a professional counselor or associate professional counselor.
  2. This chapter does not apply to the activities, services, or use of an official title on the part of a person employed as a counselor by any federal, state, or local political subdivision or by a private or public educational institution, if the person is performing counseling within the scope of employment.
  3. This chapter does not prevent students or trainees who are enrolled in programs leading to counseling degrees from interning within the limitations set by the rules adopted by the board under chapter 28-32.
  4. This chapter does not prevent a licensed attorney from providing services within the scope of the practice of law.
  5. This chapter does not prevent a member of the clergy of any religious denomination from providing services within the scope of ministerial duties.
  6. This chapter does not prevent the employment of, or volunteering by, individuals in nonprofit agencies or community organizations if these persons do not hold themselves out to the public as professional counselors or associate professional counselors.

Source:

S.L. 1989, ch. 537, § 1; 1995, ch. 421, § 3.

43-47-06. Licenses — Qualifications — Reciprocity.

  1. Except as otherwise provided in this chapter, a person may not engage in counseling in this state unless that person is a licensed professional counselor or licensed associate professional counselor.
  2. The board shall issue a license as a licensed professional counselor to each applicant who files an application upon a form and in a manner the board prescribes, accompanied by the required fee, and who furnishes evidence to the board that the applicant:
    1. Has a master’s degree from an accredited school or college in counseling or other program that meets the academic and training standards adopted by the board;
    2. Provided personal and professional recommendations that meet the requirements adopted by the board and satisfied the board that the applicant will adhere to the highest standards of the profession of counseling;
    3. Has two years of supervised experience, at least fifty percent of which must have been under a licensed professional counselor, or its equivalent as determined by the board, and the additional supervised experience may have been with other qualified professionals designated by the board which are competent in the area of practice being supervised, if barriers due to geographical location, disability, or other factors determined by the board to create a hardship exist for the applicant. The qualified professional must be registered or otherwise qualified as a clinical supervisor by the board that licenses the other professional;
    4. Provided a statement of professional intent to practice in this state describing the applicant’s proposed use of the license, the intended client population, and the counseling procedures, as defined by the board, the applicant intends to use in serving the client population; and
    5. Has demonstrated knowledge in the field of counseling by successful completion of an examination prescribed by the board.
  3. The board shall issue a license as a licensed associate professional counselor to each applicant who files an application upon a form and in a manner the board prescribes, accompanied by the required fee, and who furnishes sufficient evidence to the board that the applicant:
    1. Has a master’s degree from an accredited school or college in counseling or other program that meets the academic and training standards adopted by the board;
    2. Provided personal and professional recommendations that meet the requirements adopted by the board and satisfied the board that the applicant will adhere to the standards of the profession of counseling; and
    3. Provided a written plan for supervised experience which meets the requirements adopted by the board.
  4. The board may waive the formal examination requirements for a professional counselor license if the applicant has been licensed or certified to practice counseling in another state under standards and qualifications similar to or greater than those set by the board.
  5. A professional counselor shall renew the license every two years. The board shall renew a license upon payment of a fee set by the board and upon demonstration by the licenseholder of completion of continuing education requirements set by the board.
  6. An associate professional counselor initially licensed under this chapter may be licensed for no more than two years. The associate professional counselor’s license may not be extended beyond two years, except upon recommendation of the associate professional counselor’s supervisor and three other counselors, at least one of whom must be a professor from the associate professional counselor’s training program.

Source:

S.L. 1989, ch. 537, § 1; 1995, ch. 421, § 4; 1997, ch. 380, § 4; 2017, ch. 299, § 3, effective July 1, 2017.

43-47-06.1. Board may establish specialty licenses.

The board may provide a counselor specialty license to any licensed professional counselor who meets the standards established by the board for that particular specialty. The board shall adopt standards for specialty licenses equal to or greater than those established by the national board of certified counselors, which governs the standards for particular specialties. The board may not create a specialty license for which the scope of practice is defined under any other chapter in this title.

Source:

S.L. 1995, ch. 421, § 5.

43-47-06.2. Payment of delinquent license fees — Reinstatement.

A person who has been licensed under this chapter, and whose license has not been renewed because of the failure to pay the annual license fee, must be reinstated and the license renewed if within one year from the date of nonrenewal the person pays to the secretary of the board the amount of the annual license fee in default and a late fee to be determined by rule of the board.

Source:

S.L. 1997, ch. 380, § 5.

43-47-06.3. Criminal history record checks.

The board shall require an applicant for licensure under subsections 2, 3, and 4 of section 43-47-06 and section 43-47-06.1 to submit to a statewide and nationwide criminal history record check and may require a licensee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided in section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or licensee.

Source:

S.L. 2011, ch. 328, § 3.

43-47-07. Disciplinary proceedings.

The board may deny, refuse to renew, suspend, or revoke any license issued under this chapter upon finding by a preponderance of the evidence that the applicant or licenseholder:

  1. Has been convicted of an offense determined by the board to have a direct bearing upon the individual’s ability to practice counseling and is not sufficiently rehabilitated as determined by the board in accordance with section 12.1-33-02.1;
  2. Has been grossly negligent in the practice of counseling and has injured a client or other person to whom the individual owed a duty; or
  3. Has violated any rule of the board.

Source:

S.L. 1989, ch. 537, § 1.

43-47-07.1. Costs of prosecution — Disciplinary proceedings.

The board may impose a fee against any person subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, including the amount paid by the board for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses.

Source:

S.L. 1997, ch. 380, § 7.

43-47-08. Complaints — Investigations.

  1. A person aggrieved by the actions of a counselor licensed under this chapter may file a written complaint with the board citing the specific allegations of misconduct by the counselor. The board shall notify the counselor of the complaint and require a written response from the counselor. Neither the initial complaint nor the counselor’s response is public record. The counselor’s response must be made available to the complainant.
  2. A counselor who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any reasonable question raised by or on behalf of the board relating to the subject of the investigation, and providing copies of patient records when reasonably requested by the board and accompanied by the appropriate release.
  3. In order to pursue the investigation, the board may subpoena and examine witnesses and records, including patient records, and copy, photograph, or take samples. It may require the counselor to give statements under oath, submit to a physical or psychological examination, or both, by a physician or physicians or other qualified evaluation professionals selected by the board if it appears to be in the best interest of the public that this evaluation be secured. A written request from the board constitutes authorization to release information. Patient records that are released to the board are not public records.
  4. After review of the complaint, the counselor’s response, and information obtained in the investigation, the board shall determine if there is a reasonable basis to believe that the allegations are true and that the allegations constitute a violation of this chapter or the rules of the board. If the board determines that there is a reasonable basis to believe that the allegations are true and that the allegations constitute a violation of this chapter or the rules of the board, the board shall take appropriate action. If a reasonable basis is not found by the board, the board shall so notify the complaining party and the counselor in writing.
  5. Unless there is a patient release on file allowing the release of information at the public hearing, patient records acquired by the board in its investigation are confidential and closed to the public. All portions of board meetings wherein patient testimony or records are taken or reviewed are confidential and closed to the public. If no patient testimony or records are taken or reviewed, the remainder of the meeting is an open meeting unless a specific exemption is otherwise applicable.

Source:

S.L. 1989, ch. 537, § 1; 1997, ch. 380, § 6.

43-47-09. Confidentiality.

Except as authorized by law, no person licensed under this chapter may be required to disclose any information acquired in rendering counseling services without the consent of the person who received the counseling services.

Source:

S.L. 1989, ch. 537, § 1; 2003, ch. 211, § 23.

43-47-10. Penalty.

Any person who violates this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1989, ch. 537, § 1.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-48 Clinical Laboratory Personnel

43-48-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of clinical laboratory practice.
  2. “Clinical laboratory” means a site where clinical laboratory testing is done.
  3. “Clinical laboratory personnel” means all clinical laboratory scientists or medical technologists or specialists, and clinical laboratory technicians or medical laboratory technicians working in a clinical laboratory, but does not include persons employed by a clinical laboratory to perform clerical duties or other duties classified as supportive functions not related to the direct performance of patient tests, such as phlebotomists, does not include clinical laboratory students, and does not include cytologists performing cytology procedures and histologists or histotechnicians performing histology procedures.
  4. “Clinical laboratory student” means a person having qualified and enrolled in an approved program of structured clinical education and who is seeking training and experience required to meet minimum qualifications for a license by the board to practice as a clinical laboratory person in this state.
  5. “Clinical laboratory testing” means a microbiological, serological, chemical, hematological, radiobioassay, biophysical, or immunological assay which is derived from the human body, to provide information for diagnosis, prevention, or treatment of a disease or assessment of a medical condition.
  6. “Consumer” means a person who might use laboratory medicine services or the services of its practitioners, but does not derive such person’s livelihood from these services.
  7. “National certifying examination” means national examinations given to certify clinical laboratory personnel and recognized by the board.
  8. “Screening test” means a test measuring only the approximate value of the analyte being tested and not used for diagnosis.
  9. “Specimen” means any material derived from the human body for examination or other procedure for the purpose of providing information for the diagnosis, prevention, or treatment of any disease, impairment, or assessment of the health of humans.
  10. “Structured clinical education” means a program accredited by an appropriate accrediting agency to provide a predetermined amount of instruction and experience in clinical laboratory, and approved or modified by the board.

Source:

S.L. 1989, ch. 538, § 1.

43-48-02. License required.

No person may practice as a clinical laboratory scientist or a clinical laboratory technician unless the person is the holder of a current license issued by the board, or is exempt from licensure.

Source:

S.L. 1989, ch. 538, § 2.

43-48-03. Exemptions. [Effective through August 31, 2022]

The provisions of this chapter do not apply to the following:

  1. Physicians duly and currently licensed to practice medicine.
  2. Nurses duly and currently licensed to practice nursing and practicing within the scope of the nursing license.
  3. Persons performing clinical testing for teaching or research, provided that the results of any examination performed in such laboratories are not used in health maintenance, diagnosis, or treatment of disease.
  4. Persons employed by the United States government, or any bureau, division, or agency thereof, and working in a licensed laboratory.
  5. Any person in the pursuit of a supervised course of study leading to a degree at an accredited or educational program approved by the board.
  6. Phlebotomy personnel performing phlebotomy procedures.
  7. Persons performing testing for their own personal use and persons performing screening tests for mass screening under appropriate supervision.
  8. Agents of the state or federal government performing hematological tests for anemia upon participants of the special supplemental food program for women, infants, and children.
  9. An individual performing exempt tests identified by rules adopted by the board. The individual must be supervised by an individual who is licensed by the board, a physician licensed by the board of medicine, an advanced practice registered nurse licensed by the board of nursing, or other categories of individuals approved by the board by rule. The supervisor and individual shall adhere to the methods identified by rules adopted by the board.
  10. Perfusionists performing clinical laboratory tests for hematology, coagulation, and chemistry during the course of a patient’s perfusion procedures.
  11. Personnel of the division of laboratory services of the state department of health or department of environmental quality who are participating in the centers for disease control and prevention’s chemical terrorism toxic metals determination program.
  12. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  13. Personnel performing whole blood glucose waived tests as categorized by the food and drug administration based on the criteria established by the Clinical Laboratory Improvement Act of 1988 [42 U.S.C. 263a et seq.].

Source:

S.L. 1989, ch. 538, § 3; 2005, ch. 373, §§ 1, 2; 2013, ch. 334, § 1; 2017, ch. 297, § 1, effective August 1, 2017; 2017, ch. 199, § 50, effective April 29, 2019; 2019, ch. 368, § 2, effective August 1, 2019.

Note.

Section 43-48-03 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 50 of Chapter 199, Session Laws 2017, Senate Bill 2327; and Section 1 of Chapter 297, Session Laws 2017, Senate Bill 2202.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

43-48-03. Exemptions. [Effective September 1, 2022]

The provisions of this chapter do not apply to the following:

  1. Physicians duly and currently licensed to practice medicine.
  2. Nurses duly and currently licensed to practice nursing and practicing within the scope of the nursing license.
  3. Persons performing clinical testing for teaching or research, provided that the results of any examination performed in such laboratories are not used in health maintenance, diagnosis, or treatment of disease.
  4. Persons employed by the United States government, or any bureau, division, or agency thereof, and working in a licensed laboratory.
  5. Any person in the pursuit of a supervised course of study leading to a degree at an accredited or educational program approved by the board.
  6. Phlebotomy personnel performing phlebotomy procedures.
  7. Persons performing testing for their own personal use and persons performing screening tests for mass screening under appropriate supervision.
  8. Agents of the state or federal government performing hematological tests for anemia upon participants of the special supplemental food program for women, infants, and children.
  9. An individual performing exempt tests identified by rules adopted by the board. The individual must be supervised by an individual who is licensed by the board, a physician licensed by the board of medicine, an advanced practice registered nurse licensed by the board of nursing, or other categories of individuals approved by the board by rule. The supervisor and individual shall adhere to the methods identified by rules adopted by the board.
  10. Perfusionists performing clinical laboratory tests for hematology, coagulation, and chemistry during the course of a patient’s perfusion procedures.
  11. Personnel of the division of laboratory services of the department of health and human services or department of environmental quality who are participating in the centers for disease control and prevention’s chemical terrorism toxic metals determination program.
  12. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  13. Personnel performing whole blood glucose waived tests as categorized by the food and drug administration based on the criteria established by the Clinical Laboratory Improvement Act of 1988 [42 U.S.C. 263a et seq.].

Source:

S.L. 1989, ch. 538, § 3; 2005, ch. 373, §§ 1, 2; 2013, ch. 334, § 1; 2017, ch. 297, § 1, effective August 1, 2017; 2017, ch. 199, § 50, effective April 29, 2019; 2019, ch. 368, § 2, effective August 1, 2019; 2021, ch. 352, § 372, effective September 1, 2022.

43-48-04. Powers and duties of the board.

In order to enforce and administer this chapter, the board shall:

  1. Maintain an office to conduct business.
  2. Conduct or approve licensing or certification examinations for entry into clinical laboratory practice as authorized under this chapter.
  3. Issue and renew a license to any person who currently meets the qualifications in the category for which license is sought.
  4. Establish fees and receive all moneys collected under this chapter.
  5. Issue subpoenas, examine witnesses, administer oaths, and investigate allegations of practices violating the provisions of this chapter.
  6. Discipline licensees as necessary, which may include reprimand of the licensee, probation, denial, suspension or revocation of license.
  7. Adopt rules pursuant to chapter 28-32, necessary for the implementation of this chapter, including rules relating to professional licensure and to the establishment of standards of practice for persons holding a license to practice clinical laboratory testing in this state. The rules must specifically address the special needs of rural hospitals and clinics with regard to laboratory personnel.
  8. Employ an executive director and such other professional and secretarial staff as may be necessary.
  9. Authorize all expenditures necessary for conducting the business of the board. Any balance of fees and other moneys received by the board after payment of expenditures is to be used in administering the provisions of this chapter.
  10. Establish or approve criteria for the continuing education of clinical laboratory personnel as it may deem reasonably appropriate as a prerequisite to the renewal of any license provided for in this chapter, so long as such requirements are uniform as to application, and are reasonably related to the measurement of qualification, performance, or competence desirable and necessary for the protection of the public health.

Source:

S.L. 1989, ch. 538, § 4.

43-48-05. Board of clinical laboratory practice — Administration.

  1. There is hereby created a North Dakota board of clinical laboratory practice which shall consist of seven persons appointed by the governor, who must be residents of the state for at least two years prior to their appointment and who, except for the consumer members, must be currently engaged in their area of practice.
  2. The board must be composed of:
    1. One physician licensed to practice medicine in the state and qualified to practice as a pathologist.
    2. The following laboratory persons, whose names may be included on a list of such persons qualified to serve submitted to the governor by the North Dakota society for medical technology or other interested persons, such list to contain at least three names for each vacancy:
      1. One administrative nonphysician clinical laboratory director;
      2. One clinical laboratory scientist; and
      3. One clinical laboratory technician.
    3. Two consumer members, each of whom must be a citizen of the United States, a resident of North Dakota for at least two years before the date of appointment, and a current resident of North Dakota.
    4. The state health officer or such officer’s designee, ex officio.
  3. The members of the board shall serve for terms of three years.
  4. Each member of the board shall qualify by taking the oath required by civil officers and shall hold office until the successor is duly appointed and qualified.
  5. The governor may remove any board member for good cause after giving that member a written statement of the reason for removal and after the member has had an opportunity for hearing.
  6. Whenever any board vacancy shall occur, the appointment authority shall in the same manner as the prior appointment, appoint a successor of like qualifications for the remainder of the unexpired term.
  7. The board must be authorized to appoint subcommittees which must be representative of the various disciplines licensed under this chapter to assist, advise, and make recommendations to the board.
  8. The board shall meet at least once during the first three months of each calendar year and at least one additional meeting must be held before the end of each calendar year. Other meetings may be convened at the call of the board chairperson or the written request of any three board members.
  9. In addition to the expenses incurred while engaged in the performance of their duties, each board member shall receive a per diem fee set by the board, not to exceed the fee established by law for the legislative assembly.

Source:

S.L. 1989, ch. 538, § 5; 1995, ch. 243, § 2; 2013, ch. 334, § 2; 2017, ch. 297, § 2, effective August 1, 2017.

43-48-06. Fees.

The board shall set by rule the applicable licensure fee for those persons subject to this chapter, including the initial fee, license fee, late renewal fees, and limited permit fees. These fees must be set in such reasonable amount as to reimburse the board for the cost of its services.

Source:

S.L. 1989, ch. 538, § 6.

43-48-07. Duties and qualifications of clinical laboratory personnel — Requirements for licensure.

An applicant applying for license as a clinical laboratory scientist or clinical laboratory technician shall file a written application provided by the board, along with the appropriate fee, showing to the satisfaction of the board that the applicant is qualified for the said position.

Source:

S.L. 1989, ch. 538, § 7.

43-48-08. Clinical laboratory scientist or medical technologist or clinical laboratory specialist — Licensure qualifications.

  1. A clinical laboratory scientist or medical technologist has graduated with a bachelor of science or a bachelor of arts degree in a science-related discipline and has passed a national certifying examination approved by the board. Upon receipt of documentation that all necessary educational and experience qualifications for a clinical laboratory scientist or medical technologist have been met, or upon successful completion of an examination approved by the board, the board shall issue a clinical laboratory scientist or medical technologist license to any person meeting the above qualifications.
  2. A clinical laboratory scientist or specialist is educated in chemical, physical, or biological science and performs in a clinical laboratory only functions directly related to such person’s particular specialty. Upon successful completion of an examination covering only those fields in which an applicant is eligible to be examined, and documentation of competency by a nationally recognized certifying agency, the board shall issue a clinical laboratory specialist license to any person meeting the following minimum qualifications:
    1. A baccalaureate or higher degree with a major in one of the chemical, physical, or biological sciences.
    2. Has passed a national certifying examination in a specialty area.

A license issued must be issued as a clinical laboratory specialist followed by designation of area of specialty.

Source:

S.L. 1989, ch. 538, § 8.

43-48-09. Clinical laboratory technician or medical laboratory technician — Licensure qualifications.

A clinical laboratory technician or medical laboratory technician has successfully completed the academic requirements of an educational program recognized by the board and has passed a national certifying examination approved by the board.

Upon receipt of documentation that all necessary educational and experience qualifications for clinical laboratory technician have been met, or upon successful completion of an examination approved by the board, the board shall issue a clinical laboratory technician license to any person meeting the above qualifications.

Source:

S.L. 1989, ch. 538, § 9.

43-48-10. Student work authorization.

A clinical laboratory student may perform tests under the supervision of licensed clinical laboratory personnel without being licensed therefor by the board.

Source:

S.L. 1989, ch. 538, § 10.

43-48-11. Provisional permits.

The board may, under criteria established by the board, grant a limited permit to a person who has completed the education and experience requirements of this chapter. Such permit allows the person to practice medical technology in association with licensed clinical laboratory personnel. The permit is valid for no longer than a period of three years or until the person holding the permit is duly issued a license or the permit is revoked by the board.

Source:

S.L. 1989, ch. 538, § 11.

43-48-12. Grandfather provisions. [Repealed]

Repealed by S.L. 2013, ch. 334, § 3.

43-48-13. Issuance of license.

The board shall issue a license to any person who meets the requirements of this chapter upon application therefor and payment of the license fee established by the board.

Source:

S.L. 1989, ch. 538, § 13.

43-48-14. Renewal of license.

A license issued under this chapter is subject to biennial renewal and expires unless renewed in the manner prescribed by the board and upon the payment of a renewal fee. The board may provide for the late renewal of a license upon the payment of a late fee in accordance with its rules.

Source:

S.L. 1989, ch. 538, § 14.

43-48-15. Supervision and revocation of license — Refusal to renew.

  1. The board may deny, refuse to renew, suspend, or revoke a license or permit, or may impose probationary conditions if the licensee or permittee or applicant for a license or permit has been found to have committed unprofessional conduct which has endangered or is likely to endanger the health, welfare, or safety of the public. Unprofessional conduct includes:
    1. Obtaining or attempting to obtain a license by means of fraud, deceit, misrepresentation, or concealment of facts.
    2. Being convicted of an offense, as defined by section 12.1-01-04, and which the board determines has a direct bearing upon a person’s ability to serve the public as a licensed clinical laboratory personnel or, following the conviction of any offense, if the board determines that the person is not sufficiently rehabilitated.
    3. Violating any lawful order or rule rendered or adopted by the board.
    4. Violating any provision of this chapter.
  2. A denial, refusal to renew, suspension, revocation, or imposition of probationary conditions upon a licensee or permittee may be ordered by the board after a hearing in the manner provided by rules adopted by the board and in conformance with chapter 28-32. An application for reinstatement may be made to the board one year from the date of the revocation of a license. The board may accept an application for reinstatement, and may hold a hearing to consider such reinstatement.

Source:

S.L. 1989, ch. 538, § 15; 2017, ch. 97, § 27, effective August 1, 2017.

43-48-16. Penalty.

Any person who violates section 43-48-02 is guilty of a class B misdemeanor.

Source:

S.L. 1989, ch. 538, § 16; 2009, ch. 359, § 13.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-49 Reflexologists

43-49-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the North Dakota board of reflexology.
  2. “Reflexologist” means a person who uses special pressure techniques on the reflexes in the human feet, hands, and ears and who has studied the principles of reflexology and anatomy and physiology generally included in a regular course of study.
  3. “Reflexology” means the application of specific pressure by the use of the practitioner’s hands, thumbs, and fingers to reflex points in the client’s hands, feet, or ears using alternating pressure, and such techniques as thumb walking, finger walking, hook and back up, and rotation on a reflex.

Source:

S.L. 1993, ch. 439, § 1.

43-49-02. Board — Appointment — Terms.

The board consists of three licensed reflexologists appointed by the governor except the first board need not consist of licensed members. A person must be a member of the North Dakota reflexology association in order to be eligible for appointment to, and continued membership on, the board. The members must be appointed for three years, staggered so that the term of one member expires as of July first of each year. Each member shall hold office until that member’s successor is appointed and qualified. In July of each year the board shall meet at some convenient place within the state and shall elect one member as president, one member as vice president, and one member as secretary-treasurer. The secretary-treasurer must be bonded in the sum of one thousand dollars for the faithful discharge of the secretary-treasurer’s duties. The board may employ, and set the compensation of, employees to assist the secretary-treasurer in the performance of the secretary-treasurer’s duties. The board shall hold meetings in the state as determined necessary by the board to discharge its duties. Board members are entitled to receive twenty-five dollars per day and travel expenses in an amount provided by law for state officials and employees when performing the official duties of the board. In addition, the secretary-treasurer is to be paid an extra nine dollars per meeting.

Source:

S.L. 1993, ch. 439, § 2.

43-49-03. Removal of members of the board.

The governor may remove from office any member of the board for neglect of duties under this chapter, malfeasance or incompetency in office, or unprofessional conduct. The governor may fill any vacancy resulting from removal, resignation, or death of any member of the board. An appointee under this section must be a reflexologist licensed by the board.

Source:

S.L. 1993, ch. 439, § 3.

43-49-04. Duties of the secretary-treasurer — Compensation — Expenses of the board.

The secretary-treasurer of the board shall:

  1. Keep a record of:
    1. The name and address of every person who is licensed to practice in the state;
    2. The license number and date of issuance of the license for each licensed reflexologist;
    3. The renewal date of each license; and
    4. Other information as required by the board.
  2. Furnish, upon demand, any person a certified copy of records upon payment of a ten dollar fee plus twenty-five cents for each page copied.
  3. Prepare and submit to the governor and the North Dakota reflexology association a detailed annual report on the income and expenses of the board and a list of licensed reflexologists.

Source:

S.L. 1993, ch. 439, § 4.

43-49-05. Exemptions.

This chapter does not apply to the activities or services of physicians, chiropractors, physical therapists, cosmetologists, registered nurses, massage therapists, or members of other professions licensed, certified, or registered by the state who may on occasion apply pressure to the reflex points in the hands, feet, and ears in the course of their work. This chapter does not apply to an individual who takes a self-help class and applies reflexology without pay on immediate family members or the individual’s body.

Source:

S.L. 1993, ch. 439, § 5.

43-49-06. Requisites for licensure.

Any person who is eighteen years of age or more and is either a bona fide resident of this state for at least one month immediately preceding the application or is a resident of another state who is practicing reflexology in this state shall submit an application for licensure to the secretary-treasurer of the board. An applicant is entitled to be issued a license as a reflexologist if the applicant:

  1. Presents a diploma, certification, or completion credentials issued by a reputable school of reflexology which has submitted its curriculum to the board and has been approved by the board.
  2. Presents three character references citing that the applicant is of good moral character.
  3. Passes a reasonable demonstrative and written examination in reflexology. If there is an applicant for examination, the board shall conduct an examination at least once a year at a time and place designated by the board. Examinations must be held in the state. An applicant must receive a general average score on the examination of seventy-five percent in all subjects involved and no score of less than fifty percent in any one subject. The board shall notify the applicant of the applicant’s score. An applicant who fails to pass any subject is entitled to a re-examination on that subject within six months upon payment of an additional fee of fifty dollars or an amount established by the board. Two re-examinations exhaust the privilege under the original application.
  4. Pays a licensing fee of seventy-five dollars or an amount set by the board.

Source:

S.L. 1993, ch. 439, § 6.

43-49-07. Qualification for licensure by an applicant licensed in another jurisdiction.

Notwithstanding the requirements in section 43-49-06 for the issuance of a license, the board shall license an individual who applies for licensure to work in this state if the applicant is licensed as a reflexologist by another state, applies for licensure, pays the applicable fee, meets or exceeds the requirements for licensure set by the board, and who has no imposed or pending disciplinary actions.

Source:

S.L. 1993, ch. 439, § 7; 2011, ch. 329, § 1.

43-49-08. Restriction on use of title.

A reflexologist licensed by the board may be held out as a “licensed reflexologist” and may use the abbreviation “L.R.” as a part of or immediately following that person’s name, in connection with the profession. No person may use the title “licensed reflexologist” unless licensed in accordance with this chapter.

Source:

S.L. 1993, ch. 439, § 8.

43-49-09. License — Display — Renewal — Renewal fee.

Each license must be conspicuously displayed at the place of practice. A license must be recorded within thirty days after issuance in the office of the recorder, unless the board of county commissioners designates a different official, in any county where the reflexologist practices.

A license must be renewed before June first of each year. The secretary-treasurer of the board shall mail notice of renewal to each licensed reflexologist’s address as shown in the records of the board at least thirty days before the expiration of the license. The notice must include any requests for information necessary for renewal. The licensed reflexologist may renew a license by sending a renewal fee of the amount set by the board, not to exceed one hundred dollars, to the secretary-treasurer of the board, and submitting proof that the reflexologist has attended a seminar on reflexology at least once during the preceding three years. A license that is not renewed by June thirtieth lapses.

Source:

S.L. 1993, ch. 439, § 9; 1999, ch. 278, § 72; 2001, ch. 120, § 1; 2011, ch. 329, § 2.

43-49-10. Deposit of fees.

The secretary-treasurer shall deposit all fees collected under this chapter in a separate account for the administration of this chapter.

Source:

S.L. 1993, ch. 439, § 10.

43-49-11. Prohibited practices.

A reflexologist may not diagnose or treat for specific diseases, practice spinal or other joint manipulations, or prescribe or adjust prescription medication.

Source:

S.L. 1993, ch. 439, § 11; 2011, ch. 329, § 3.

43-49-12. Revocation of licensing.

The license of a licensed reflexologist may be revoked, suspended, or annulled by the board upon any one or more of the following grounds:

  1. That the person is guilty of gross malpractice or incompetence.
  2. That the person’s mental or physical health endangers public health or safety.
  3. That the person fails to comply with rules of the board.
  4. That the person is guilty of false or deceptive advertising.
  5. That the person engages in unprofessional conduct.

Source:

S.L. 1993, ch. 439, § 12.

43-49-13. Administrative procedures.

Any person may file a written complaint with the board seeking disciplinary action against a reflexologist for violations of this chapter or rules adopted by the board. If the board determines that a complaint alleges facts that, if true, would require denial, revocation, suspension, or nonrenewal or other disciplinary action of a licensed reflexologist, the board shall conduct a hearing. The board may dismiss a complaint that does not state facts that warrant action.

Source:

S.L. 1993, ch. 439, § 13.

CHAPTER 43-50 Occupational Licensee DataBase

43-50-01. Definition.

For purposes of this chapter, “occupational or professional certificate, permit, or license” means a certificate, permit, or license issued by or on behalf of the state by any of its licensing authorities or occupational or professional boards, which an individual is required to obtain before engaging in the individual’s occupation or profession.

Source:

S.L. 1997, ch. 404, § 49.

43-50-02. Social security number required for professional or occupational license.

No issuer of an occupational or professional certificate, permit, or license may issue such a certificate, permit, or license, or renewal thereof, to any individual who has not first provided the individual’s social security number.

Source:

S.L. 1997, ch. 404, § 49.

43-50-03. Inclusion of social security number in automated database.

An issuer of an occupational or professional certificate, permit, or license, that maintains an automated database concerning individuals who have applied for or been issued a certificate, permit, or license, after July 1, 1997, must include the individual’s social security number as an identifier in that database.

Source:

S.L. 1997, ch. 404, § 49.

43-50-04. Social security number — Confidential.

A social security number provided under this chapter is confidential.

Source:

S.L. 1997, ch. 404, § 49; 2003, ch. 382, § 7.

CHAPTER 43-51 Professional and Occupational Licensing

43-51-01. Definitions.

As used in this chapter, unless the context indicates otherwise:

  1. “Board” means a board, commission, or other agency of state government created or identified in this title to regulate a particular occupation or profession and the education standards and practices board.
    1. The term does not include the:
      1. State board of accountancy;
      2. State electrical board;
      3. North Dakota real estate appraiser qualifications and ethics board;
      4. State real estate commission;
      5. Secretary of state with respect to contractor licensing;
      6. North Dakota board of medicine; and
      7. State board of dental examiners.
    2. The term includes any other agency of state government which is created or identified outside this title to regulate a particular occupation or profession if the agency elects, by administrative rule, to invoke the authority in this chapter.
  2. “Foreign practitioner” means an individual who currently holds and maintains a license in good standing to engage in an occupation or profession in a state or jurisdiction other than this state and who is not the subject of a pending disciplinary action in any state or jurisdiction.
  3. “Good standing” means a foreign practitioner holds a current license that is not issued on a temporary or restricted basis, is not encumbered or on probation, and is not suspended or revoked.
  4. “License” means a license, certificate, permit, or similar authorization to practice an occupation or profession which is issued by a government agency in another state or jurisdiction that imposes requirements for obtaining and maintaining a license which are comparable to the requirements imposed in this state to obtain and maintain a license to practice the same profession or occupation.
  5. “Military member” means a member of the armed forces of the United States or a reserve component of the armed forces of the United States stationed in this state in accordance with military orders or stationed in this state before a temporary assignment to duties outside of this state.
  6. “Military spouse” means a foreign practitioner who is the spouse of a military member.
  7. “Occupation or profession” means activity for which a license is required from a board or similar activity for which a license is required in another state or jurisdiction.

Source:

S.L. 2015, ch. 297, § 37, effective August 1, 2015; S.L. 2001, ch. 390, § 1; 2013, ch. 335, § 1; 2019, ch. 369, § 5, effective July 1, 2019; 2021, ch. 324, § 2, effective August 1, 2021.

43-51-02. Location of practice of an occupation or profession.

The provision of services to an individual in this state which fall within the standard of practice of a profession or occupation regulated by a board, regardless of the means by which the services are provided or the physical location of the person providing those services, constitutes the practice of that occupation or profession in this state and is subject to regulation by the appropriate board in this state.

Source:

S.L. 2001, ch. 390, § 1.

43-51-03. Indirect practice without a license.

  1. A foreign practitioner may provide services in this state which fall within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license from the appropriate board if the services are provided through consultation with the person licensed by the board and if the foreign practitioner has no direct communication in this state with the individual receiving the services except in the presence of the individual who is licensed by the board. Both the foreign practitioner and the individual licensed by the board are responsible for the services provided under this subsection.
  2. A foreign practitioner may provide services in this state which fall within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license from the appropriate board if the services are provided through a remote means and are a continuation of an existing relationship between the foreign practitioner and the individual receiving the services which was formed in the state or jurisdiction in which the foreign practitioner is currently licensed.

Source:

S.L. 2001, ch. 390, § 1.

43-51-04. Emergency practice without a license.

Upon prior written notice to the appropriate board, a foreign practitioner may provide services in this state which fall within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license from the board, if the services are provided in response to a disaster or emergency declared by the appropriate authority in this state. The notice provided by a foreign practitioner under this section must include verified documentation from the appropriate licensing authority which identifies the requirements for licensure in that jurisdiction and which confirms that the practitioner is licensed and in good standing in that jurisdiction and any other information requested by the board. A notice provided under this section, if accompanied by sufficient documentation, is deemed to be accepted unless denied by the board. If a notice under this section is denied, the foreign practitioner immediately shall cease providing services under this section and may not resume providing services until after a successful appeal of the board’s decision under chapter 28-32 or after an application for privileges under this section is reviewed and approved by the board.

Source:

S.L. 2001, ch. 390, § 1; 2021, ch. 325, § 1, effective August 1, 2021.

43-51-05. Limited practice without a license.

Upon prior written application to the appropriate board, a foreign practitioner may provide services in this state which fall within the scope of practice designated by the foreign practitioner’s license and by this title without obtaining a license from the board if the services are provided for no more than thirty full or partial days per year. The one-year period commences on the date the written application is approved by the board. An application from a foreign practitioner under this section must include verified documentation from the appropriate licensing authority which identifies the requirements for licensure in that jurisdiction and which confirms that the practitioner is licensed and in good standing in that jurisdiction and any other information requested by the board. The board may require payment of a fee of twenty-five dollars or other fee established by the board by administrative rule, not to exceed the higher of twenty-five dollars or one-tenth of the fee for an annual license from the board, as a condition of approving an application under this section.

Source:

S.L. 2001, ch. 390, § 1.

43-51-06. Licensure without examination.

A board may issue a license, without examination, to any foreign practitioner who has practiced the occupation or profession for which the practitioner is licensed at least two years prior to submitting the application to the board, or for any shorter period of time provided in this title or established by the board by administrative rule, and who meets the other requirements for a license. A board is not prohibited from issuing a license under this section to a foreign practitioner if the state or jurisdiction in which the individual is licensed does not extend similar privileges to individuals licensed in this state. This section does not prohibit a board from requiring a foreign practitioner to take an examination regarding the laws of this state and the rules established by the board.

Source:

S.L. 2001, ch. 390, § 1.

43-51-07. License compacts.

A board may establish, by administrative rule, conditions and procedures for foreign practitioners to practice in this state pursuant to written compacts or agreements between the board and one or more other states or jurisdictions or pursuant to any other method of license recognition that ensures the health, safety, and welfare of the public. Any compact or agreement by a board does not become binding on this state until implemented by administrative rules under this section.

Source:

S.L. 2001, ch. 390, § 1.

43-51-08. Discipline.

A foreign practitioner’s authority to practice an occupation or profession under this chapter is subject to denial, probation, suspension, revocation, or other form of discipline for the same grounds as individuals licensed by the appropriate board in this state. In addition to other grounds for disciplinary action authorized by law, a person who holds a license issued by a board may be subject to disciplinary action in this state for:

  1. Failing to adequately review services provided by a foreign practitioner under this chapter;
  2. Unauthorized practice of the person’s occupation or profession in another state or jurisdiction, including the delivery of services by a licenseholder in this state to a recipient of services in another state or jurisdiction;
  3. Acts occurring in another state or jurisdiction which could subject the person to disciplinary action if those acts occurred in this state; or
  4. Acts occurring in another state or jurisdiction which could subject the person to disciplinary action if the person held a license in that state or jurisdiction.

A disciplinary action under this section against a foreign practitioner is subject to chapter 28-32.

Source:

S.L. 2001, ch. 390, § 1.

43-51-09. Jurisdiction — Service of process.

A foreign practitioner who provides services in this state without a license as permitted in this chapter shall be deemed to have consented to the jurisdiction of this state and the appropriate board, to be bound by the laws of this state and the rules established by the appropriate board, and to have appointed the secretary of state as the foreign practitioner’s agent upon whom process may be served in any action or proceeding against the practitioner arising out of the practitioner’s activities in this state.

Service on the secretary of state of any process, notice, or demand is deemed personal service upon the foreign practitioner and must be made by filing with the secretary of state an original and two copies of the process, notice, or demand, with the filing fee of twenty-five dollars. A member of the legislative assembly or a state or county officer may not be charged for filing any process, notice, or demand for service. The secretary of state shall immediately forward a copy of the process, notice, or demand by registered mail, addressed to the foreign practitioner at the address provided by the filer.

Source:

S.L. 2001, ch. 390, § 1.

43-51-10. Application with other laws.

This chapter applies notwithstanding any other limitation in state law on the practice of an occupation or profession. This chapter supplements and does not repeal the authority provided to each board. Nothing in this chapter prohibits a board from imposing conditions on foreign practitioners by administrative rule or compact which are more restrictive than those imposed in this chapter, if those restrictions are enacted to ensure the health, safety, and welfare of the public. Rules under this section may be adopted as emergency rules under chapter 28-32. Nothing in this chapter alters the scope of practice of a particular occupation or profession as defined by law.

Source:

S.L. 2001, ch. 390, § 1.

43-51-10.1. Emergency rules — Emergencies or disasters.

If a disaster or emergency is declared in this state, a board may adopt emergency rules under chapter 28-32 which are contrary to title 43 if the rules are necessary to abate an imminent peril that threatens the health, safety, or welfare of the public. Rules adopted under this section are valid until thirty days after the end of the disaster or emergency declaration.

Source:

S.L. 2021, ch. 325, § 2, effective August 1, 2021.

43-51-11. Members of military — License renewal.

  1. A board shall adopt rules to provide for or shall grant on a case-by-case basis exceptions to the board’s license renewal requirements in order to address renewal compliance hardships that may result from:
    1. Activation of more than thirty days of a licensee who is a member of the national guard or a military member.
    2. Service in the theater or area of armed conflict by a licensee who is a military member.
  2. For purposes of this section, the term board includes the state board of accountancy, state electrical board, North Dakota real estate appraiser qualifications and ethics board, state real estate commission, secretary of state with respect to contractor licensing, North Dakota board of medicine, and state board of dental examiners.

Source:

S.L. 2005, ch. 374, § 1; 2015, ch. 297, § 38, effective August 1, 2015; 2021, ch. 324, § 3, effective August 1, 2021.

43-51-11.1. Military spouses and military members — Licensure.

  1. A board shall adopt rules regarding licensure of a military spouse or a military member or shall grant on a case-by-case basis exceptions to the board’s licensing standards to allow a military spouse or military member to practice the occupation or profession in the state if upon application to the board:
    1. The military spouse or military member demonstrates competency in the occupation or profession through methods or standards determined by the board; and
    2. The board determines the issuance of the license will not substantially increase the risk of harm to the public. A board with authority to require an applicant to submit to a statewide and national criminal history record check under section 12-60-24 may order such a record check under this subdivision.
  2. A board shall issue a provisional license or temporary permit to a military spouse or military member for which the licensure requirements under subsection 1 have been substantially met. A board may not charge a military spouse or military member any fees for a provisional license or temporary permit under this subsection. A provisional license or temporary permit issued under this subsection may not exceed two years and remains valid while the military spouse or military member is making progress toward satisfying the unmet licensure requirements. A military spouse or military member may practice under a provisional license or temporary permit issued under this subsection until any of the following occurs:
    1. The board grants or denies the military spouse or military member a North Dakota license under subsection 1 or grants a North Dakota license under the traditional licensure method;
    2. The provisional license or temporary permit expires;
    3. The military spouse or military member fails to comply with the terms of the provisional license or temporary permit; or
    4. The board revokes the provisional license or temporary permit based on a determination revocation is necessary to protect the health and safety of the residents of the state.
  3. A board that may elect to subject the board to this chapter under subsection 1 of section 43-51-01 may issue a license, provisional license, or temporary permit to a military spouse or military member in the same manner as provided under subsections 1 and 2 regardless of whether the board has adopted rules to subject the board to this chapter.
  4. A military spouse or military member issued a license under this section has the same rights and duties as a licensee issued a license under the traditional licensure method.
  5. If within thirty days of receipt of a completed application under subsection 1 the board does not grant or deny a license under subsection 1 or does not issue a provisional license or temporary permit under subsection 2, the board automatically shall issue a provisional license or temporary permit. A provisional license or temporary permit issued under this subsection remains valid until the board grants or denies the application for licensure under subsection 1 or issues a provisional license or temporary permit under subsection 2.
  6. For purposes of this section, the term “board” includes the state board of accountancy, state electrical board, North Dakota real estate appraiser qualifications and ethics board, state real estate commission, secretary of state with respect to contractor licensing, North Dakota board of medicine, and state board of dental examiners.

Source:

S.L. 2013, ch. 335, § 2; 2015, ch. 62, § 15, effective August 1, 2015; 2019, ch. 369, § 6, effective July 1, 2019; 2021, ch. 324, § 4, effective August 1, 2021.

43-51-11.2. Members of the military and military spouses — Licensure applications.

  1. On each licensure application and renewal form, a board shall inquire and maintain a record of whether an applicant or licensee is a military member or military spouse. If an applicant self-identifies as and provides the board with satisfactory proof of being a military spouse or military member, the board immediately shall commence the process to issue a license, provisional license, or temporary permit under section 43-51-11.1.
  2. Annually, on forms developed by the department of commerce, each board shall report to the department of commerce regarding military member and military spouse data.
  3. For purposes of this section, the term “board” includes the state board of accountancy, state electrical board, North Dakota real estate appraiser qualifications and ethics board, state real estate commission, secretary of state with respect to contractor licensing, North Dakota board of medicine, and state board of dental examiners.

Source:

S.L. 2019, ch. 369, § 7, effective July 1, 2019; 2021, ch. 324, § 5, effective August 1, 2021.

43-51-12. Foreign practitioners — Emergency practice exemption.

Notwithstanding contrary provisions of law, a foreign practitioner may practice in a disaster or an emergency declared in this state, practice as a member of an organ harvesting team, or practice on board an ambulance as part of the ambulance treatment team.

Source:

S.L. 2005, ch. 372, § 2; 2021, ch. 325, § 3, effective August 1, 2021.

43-51-13. Definition — Registration — Obtaining a license or permit.

  1. For purposes of this section “occupational or professional certificate, permit, or license” means a certificate, permit, or license issued by or on behalf of the state by any of the state’s licensing authorities or occupational or professional boards.
  2. A business entity that has a registration requirement with the secretary of state only may seek to obtain an occupational or professional certificate, permit, or license required of the state after the registration is filed with the secretary of state.

Source:

S.L. 2019, ch. 92, § 13, effective August 1, 2019.

CHAPTER 43-52 Interpreters

43-52-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Consumer” means an individual who is deaf, deaf-blind, speech-impaired, hard-of-hearing, or who requires special communication techniques in order to communicate.
  2. “Interpreter” means an individual who engages in the practice of interpreting.
  3. “Interpreting” means the translating or transliterating of English concepts to any necessary specialized vocabulary used by a consumer or translating of a consumer’s specialized vocabulary to English concepts. Necessary specialized vocabularies include American sign language, English-based sign language, and oral interpreting.
  4. “Nationally recognized certification” means certification granted by a national organization that is based on a skills assessment of the applicant. These organizations include the registry of interpreters for the deaf and the national association of the deaf.
  5. “Video remote interpreting” is a process that allows an individual who is deaf or hard-of-hearing to communicate with a hearing individual at the same location through an interpreter displayed via videoconferencing equipment or through a television with a videophone.

Source:

S.L. 2001, ch. 391, § 1; 2011, ch. 330, § 1.

43-52-02. Practice of interpreting.

An individual may not practice or represent as an interpreter for deaf, deaf-blind, speech-impaired, or hard-of-hearing individuals in the state unless the individual holds a valid nationally recognized certification. A person may not provide video remote interpreting services in this state unless the person is an individual who holds a valid nationally recognized certification.

Source:

S.L. 2001, ch. 391, § 1; 2011, ch. 330, § 2.

43-52-03. Exceptions.

This chapter does not prevent or restrict:

  1. A nonresident interpreter working in this state not more than nineteen days per year.
  2. An interpreter working at a religious activity.
  3. An interpreter working as a volunteer without compensation.
  4. An interpreter working in an emergency. An emergency is a situation in which the consumer decides that the length of time needed to obtain a certified interpreter is likely to cause injury or loss to the consumer.
  5. The activities and services of an interpreter intern or student-in-training enrolled in a program of study in interpreting at an accredited institution of higher learning; interpreting under the supervision of a certified interpreter as part of a supervised program; and identified as an interpreter intern or student-in-training.
  6. An individual using sign language or a manual communication system as a means of communication with or on behalf of a family member, a deaf individual, a deaf-blind individual, a speech-impaired individual, or hard-of-hearing individual who has specifically requested that use by that individual.
  7. A communication made as a reasonable accommodation for the employment of a deaf, deaf-blind, speech-impaired, or hard-of-hearing individual.
  8. A communication with a deaf, deaf-blind, speech-impaired, or hard-of-hearing individual who could not communicate using American sign language or English-based sign language.
  9. An individual working in an elementary or secondary school who has passed the educational interpreter performance assessment at a level of 3.5 or higher.
  10. An individual who has successfully completed an accredited interpreter training program from interpreting without certification for a period of up to two years from the date of completion of the program if, during that period, the individual is mentored by a trained mentor who is either a certified interpreter or a deaf adult.

Source:

S.L. 2001, ch. 391, § 1; 2003, ch. 379, § 1; 2011, ch. 330, § 3.

43-52-04. Penalty — Civil penalty.

Any person who violates this chapter is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of injunction is available to restrain and enjoin a violation of this chapter without proof of actual damages sustained by any person.

Source:

S.L. 2011, ch. 330, § 4.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-53 Marriage and Family Therapy Practice

43-53-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Advertise” includes the issuing or causing to be distributed any card, sign, or device to any person; the causing, permitting, or allowing any sign or marking in or on any building, radio, or television; or advertising by any other means designed to secure public attention.
  2. “Associate marriage and family therapist” means an individual who has completed the educational requirements for a marriage and family license and who has successfully passed the licensing examination, but who has not yet successfully completed the supervised work experience requirement for licensure as a marriage and family therapist.
  3. “Board” means the North Dakota marriage and family therapy licensure board.
  4. “Licensed marriage and family therapist” means an individual who holds a valid license issued under this chapter.
  5. “Marriage and family therapy” means the diagnosis and treatment of mental and emotional disorders, whether cognitive, affective, or behavioral, within the context of marriage and family systems. Marriage and family therapy involves the professional application of psychotherapeutic and family systems theories and techniques in the delivery of services to individuals, couples, and families for the purpose of treating such diagnosed nervous and mental disorders.
  6. “Practice of marriage and family therapy” means the rendering of marriage and family therapy services to individuals, couples, and families, singly or in groups, whether the services are offered directly to the general public or through organizations, either public or private, for a fee, monetary or otherwise.
  7. “Qualified supervision” means the supervision of clinical services, in accordance with standards established by the board, by an individual who has been recognized by the board as an approved supervisor. At least fifty percent of the hours of qualified supervision must be with an approved supervisor who is a licensed marriage and family therapist and additional hours of qualified supervision may be with other professionals designated by the approved supervisor and acting under the approved supervisor. The other professional must be approved by the board, approved by that individual’s licensing authority to supervise interns if appropriate, and competent in the area of practice being supervised. The marriage and family therapist approved supervisor remains the applicant’s supervisor of record.
  8. “Recognized educational institution” means any educational institution that grants a master’s or higher degree that is recognized by the board and by a regional accrediting body, or a postgraduate training institute accredited by the commission on accreditation for marriage and family therapy education.
  9. “Use a title or description of” means to hold oneself out to the public as having a particular status by means of stating on signs, mailboxes, address plates, stationery, announcements, calling cards, or other instruments of professional identification.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 2; 2017, ch. 299, § 4, effective July 1, 2017.

43-53-02. Representation to the public.

Effective January 1, 2006, except as specifically provided otherwise under this chapter, only an individual licensed under this chapter may use the title “marriage and family therapist” or the abbreviations “MFT”. A licensee shall display prominently the licensee’s license at the principal place of business of the licensee.

Source:

S.L. 2005, ch. 375, § 1.

43-53-03. Exemptions.

  1. An individual is exempt from the requirements of this chapter if:
    1. The individual is practicing marriage and family therapy as part of that individual’s duties as an employee of a recognized academic institution or a governmental institution or agency while performing those duties for which the individual is employed by such a facility, institution, or agency.
    2. The individual is a marriage and family therapy intern or individual preparing for the practice of marriage and family therapy under qualified supervision in a training institution or facility or supervisory arrangement recognized and approved by the board if:
      1. The individual is a student in a master’s or doctorate program of marriage and family therapy; and
      2. The individual is designated by a title such as “marriage and family therapy intern”, “marriage therapy intern”, “family therapy intern”, or other title clearly indicating such training status.
    3. The individual is a member of the clergy of any religious denomination and providing services within the scope of ministerial duties.
    4. The individual is a volunteer for or is employed by a nonprofit agency or community organization and the individual does not hold out to the public that the individual is a licensed marriage and family therapist.
  2. This chapter does not prevent any person licensed by the state from doing work within the standards and scope of practice of that person’s profession, including the practice and advertising of marriage and family therapy services.

Source:

S.L. 2005, ch. 375, § 1; 2017, ch. 296, § 1, effective August 1, 2017.

43-53-04. Marriage and family therapy licensure board.

  1. The North Dakota marriage and family therapy licensure board consists of five members. The governor shall appoint the board members to serve terms of four years, except for those first appointed one member must continue in office for two years, two for three years, and two, including the chairman, for four years.
  2. The governor shall appoint members of the board from among individuals who meet the following qualifications:
    1. At least three members must be licensed practicing marriage and family therapists; and each must have been for at least five years immediately preceding appointment actively engaged as marriage and family therapists in rendering professional services in marriage and family therapy; in the education and training of master’s, doctoral, or postdoctoral students of marriage and family therapy; or in marriage and family therapy research. A member under this subdivision must have spent the majority of the time devoted by that member to such activity during the two years preceding appointment residing in this state.
    2. At least one member must be a representative of the general public and may not have any direct affiliation with the practice of marriage and family therapy or another mental health profession.
    3. The initial appointees, with the exception of any representative of the general public, are deemed to be and become licensed practicing marriage and family therapists immediately upon appointment and qualification as members of the board.
  3. The governor shall nominate a new member to fill a vacancy on the board within thirty days of the vacancy. A member chosen to fill a board vacancy must be appointed for the unexpired term of the board member whom that member is succeeding. Upon the expiration of a member’s term of office, a board member shall continue to serve until a successor is appointed. An individual may not be appointed more than once to fill an unexpired term or appointed to more than two consecutive full terms. A member may not serve as chairman for more than four years. The appointment of any member of the board automatically terminates thirty days after the date the member is no longer a resident of this state.
  4. The governor may remove any member of the board or the chairman from the position as chairman for neglect of duty or malfeasance or conviction of a felony or crime of moral turpitude while in office, but for no other reason. A member may not be removed until after a hearing on the charges and at least thirty days’ prior written notice to such accused member of the charges and of the date fixed for such hearing.
  5. A board member may not participate in any matter before the board in which that member has a pecuniary interest, personal bias, or other similar conflict of interest. A board member shall serve without compensation but is entitled to be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board business.

Source:

S.L. 2005, ch. 375, § 1; 2011, ch. 54, § 7.

43-53-05. Board powers and duties.

  1. The board shall administer and enforce this chapter. The board shall adopt rules as the board determines necessary.
  2. The board shall examine and pass on the qualifications of all applicants and shall issue a license to each successful applicant. The board shall adopt a seal which must be affixed to all licenses issued by the board.
  3. The board may authorize expenditures determined necessary to carry out this chapter.
  4. Three of the members of the board constitute a quorum. The board may employ attorneys, accountants, experts, and other employees as necessary for the proper performance of the board’s duties.
  5. The board shall adopt a nationally recognized code of ethics for the practice of marriage and family therapy.
  6. The board shall establish continuing education requirements for license renewal.
  7. The board shall publish an annual list of the names and addresses of all individuals licensed under this chapter.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 3.

43-53-06. Licenses.

  1. Each individual desiring to obtain a license as a practicing marriage and family therapist shall submit an application to the board, upon such form and in such manner as the board prescribes. An applicant shall furnish evidence that the applicant:
    1. Is of good moral character;
    2. Has not engaged in any practice or conduct that would be a ground for discipline under this chapter; and
    3. Is qualified for licensure pursuant to the requirements of this chapter.
  2. An individual who was actively practicing marriage and family therapy in this state before January 1, 2008, and whose application is received by the board before January 1, 2010, may be issued a license by the board if the applicant meets the qualifications set forth in subdivisions a and b of subsection 1 and provides evidence to the board that the applicant meets educational and experience qualifications as follows:
    1. An appropriate graduate degree, as defined by the board, from a regionally accredited institution so recognized at the time of granting such degree.
    2. At least five years of clinical experience in the practice of marriage and family therapy, and membership or certification by an appropriate professional organization, as defined by the board.
  3. An applicant may be issued a license by the board if the applicant meets the qualifications set forth in subsection 1 and provides satisfactory evidence to the board that the applicant:
    1. Holds a master’s degree or a doctoral degree in marriage and family therapy from a recognized educational institution, or a graduate degree in an allied field from a recognized educational institution and graduate level coursework which is equivalent to a master’s degree in marriage and family therapy, as determined by the board.
    2. Has successfully completed two calendar years of work experience in marriage and family therapy under qualified supervision following receipt of a qualifying degree.
    3. Has passed the examination administered or adopted by the board.
  4. An applicant may be issued an associate marriage and family therapist license by the board if the applicant meets the qualifications set forth in subsection 1 and has provided the board with satisfactory evidence that the applicant meets the requirements in subdivisions a and c of subsection 3. Associate marriage and family therapists must practice under the supervision of a board-qualified supervisor and must obey the same laws and rules as a marriage and family therapist. An associate marriage and family therapist license lasts for one year and may be renewed for up to four additional years.
  5. The board may adopt rules concerning reinstatement of lapsed licenses, voluntary termination, or emeritus status.
  6. The board may require an applicant for licensure or a licensee to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant or licensee.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 4.

43-53-07. Examination.

  1. The board shall conduct an examination at least once a year at a time and place designated by the board. Examinations may be written or oral as determined by the board. The board may create its own examination or adopt a nationally recognized examination. In any written examination each applicant must be designated so that the applicant’s name is not disclosed to the board until the examination has been graded. Examinations must include questions in such theoretical and applied fields as the board determines most suitable to test an applicant’s knowledge and competence to engage in the practice of marriage and family therapy. An applicant is deemed to have passed an examination upon affirmative vote of at least four members of the board.
  2. Any applicant who fails an examination conducted by the board may not be admitted to a subsequent examination for a period of at least six months.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 5.

43-53-08. License by endorsement.

The board shall issue a license by examination of credentials to any applicant licensed or certified as a marriage and family therapist in another state for which the requirements for the license or certificate are equivalent to or exceed the requirements of this state, provided the applicant submits an application on forms prescribed by the board and pays the original licensure fee prescribed by this chapter.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 6.

43-53-09. Fees.

A fee, as determined by the board, must be paid to the board for original licensure. A fee may also be established for the licensure examination. A license is valid for two years and must be renewed biennially, with the renewal fee being determined by the board. The board may also establish a fee for a duplicate license. Any applicant for renewal of a license that has expired must be required to pay a late fee determined by the board. The board may also establish a fee for continuing education sponsors. The fees established under this section must be adequate to establish and maintain the operation of the board. Payment of a late fee is not a defense to a charge of practicing without a license.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 7.

43-53-10. Disciplinary proceedings.

  1. The board may deny an application or institute a disciplinary proceeding concerning a licensee on the following grounds:
    1. Conviction by a court of competent jurisdiction of an offense that the board determines to be of such a nature as to render the licensee unfit to practice marriage and family therapy. The board may compile, maintain, and publish a list of such offenses.
    2. Violation of ethical standards of such a nature as to render the licensee unfit to practice marriage and family therapy. The board shall publish such ethical standards.
    3. Fraud or misrepresentation in obtaining a license.
    4. Any just and sufficient cause that renders a licensee unfit to practice marriage and family therapy.
  2. An applicant may be denied a license, and a licensee may be suspended or revoked, placed on supervised or unsupervised probation, required to take corrective action, attend continuing education, or fined up to two hundred dollars per violation for the reasons set forth in subsection 1. A licensee may not be disciplined under this section except by majority vote of the full board, notwithstanding any other provision of this chapter. The board may also charge the licensee with its reasonable expenses and reasonable attorney’s fees for any disciplinary matter resulting in disciplinary action.
  3. Any person may file a complaint with the board seeking discipline of a licensee. The complaint must be in a form prescribed by the board and must be verified under oath by the complainant or a duly authorized officer of a complainant. If the board determines that a complaint alleges facts that, if true, would require discipline of a licensee, the board promptly shall institute a hearing. If the board determines a complaint does not state facts warranting a hearing, the complaint may be dismissed. The board may institute a hearing for discipline of a licensee on its own motion.
  4. Any person may be permitted to intervene and participate in board hearings on denial, suspension, or revocation of licenses upon a showing of an interest in such proceeding.
  5. Any individual who has been suspended or revoked may not apply to the board for vacation of the suspension until the time specified in the board’s order is complete or for reinstatement of the license until one year after the board’s order or such other time as specified in the board’s order is complete.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 8.

43-53-10.1. Temporary suspension — Appeal.

  1. If, based on verified evidence, the board determines by a clear and convincing standard that the evidence presented to the board indicates the continued practice by a licensed marriage and family therapist or an associate marriage and family therapist would create significant risk of serious and ongoing harm to the public while a disciplinary proceeding is pending, and that immediate suspension of the licensed marriage and family therapist’s license or the associate marriage and family therapist’s license is required to reasonably protect the public from this risk of harm, the board may order a temporary suspension ex parte.
    1. For purposes of this section, “verified evidence” means testimony taken under oath and based on personal knowledge.
    2. The board shall give prompt written notice of the suspension to the licensed marriage and family therapist or associate marriage and family therapist which must include a copy of the order and complaint, the date set for a full hearing, and, upon request, a specific description of the nature of the evidence, including a list of all known witnesses.
    3. The board shall make available to the licensed marriage and family therapist or associate marriage and family therapist a specific description of any documents relied upon by the board in ordering the temporary suspension.
  2. An ex parte suspension remains in effect until a final order is issued after an administrative hearing or appeal to the district court under this section or until the suspension is otherwise terminated by the board.
  3. The board shall conduct an administrative hearing on the merits of the allegations to determine what disciplinary action, if any, will be taken against the licensed marriage and family therapist or associate marriage and family therapist who is the subject of the ex parte suspension. The administrative hearing must be held not later than thirty days from the issuance of the ex parte temporary suspension order. The licensed marriage and family therapist or associate marriage and family therapist is entitled to a continuance of the thirty-day period upon request for a period determined by the hearing officer.
  4. The licensed marriage and family therapist or associate marriage and family therapist may appeal the ex parte temporary suspension order to the district court. On appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The district court shall give priority to the appeal for prompt disposition.
  5. Any medical record of a patient, or other document containing personal information about a patient, which is obtained by the board is an exempt record.

History. S.L. 2017, ch. 296, § 2, effective August 1, 2017.

43-53-11. Limitations of practice — Divorce proceedings.

  1. If both parties to a marriage have obtained marriage and family therapy by a licensed marriage and family therapist, the therapist may not testify in a spousal support or divorce action concerning information acquired in the course of the therapeutic relationship. This subsection does not apply to custody actions.
  2. There is no monetary liability on the part of and no cause of action may arise against any licensee in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except if the patient has communicated to the licensee a serious threat of physical violence against a reasonably identifiable victim or victims.
  3. The duty to warn of or to take reasonable precautions to provide protection from violent behavior arises only under the limited circumstances specified under subsection 2. The duty is discharged by the licensee if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency.
  4. No monetary liability and no cause of action may arise under this chapter against any licensee for confidences disclosed to third parties in an effort to discharge a duty arising under subsection 2 according to subsection 3.

Source:

S.L. 2005, ch. 375, § 1.

43-53-12. Penalty.

Any person who practices without a license in violation of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 2005, ch. 375, § 1; 2009, ch. 379, § 9.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-54 Home Inspectors

43-54-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Client” means a person that engages or seeks to engage the services of a home inspector for a home inspection.
  2. “Home inspection” means the process by which a home inspector provides a nonintrusive, visual examination and written evaluation of the heating system, cooling system, plumbing system, electrical system, structural components, foundation, roof, masonry structure, and exterior and interior components of a residential building. The term does not include an examination of items that are concealed or not readily accessible or identification of concealed conditions or defects.
  3. “Home inspector” means an individual registered under this chapter to conduct home inspections.
  4. “Registrar” means the secretary of state.
  5. “Residential building” means a structure consisting of not more than four family dwelling units.

Source:

S.L. 2005, ch. 376, § 1.

43-54-02. Home inspector registration required — Penalty.

The registrar shall issue and renew registrations to home inspectors pursuant to this chapter. An individual may not perform a home inspection for compensation unless registered under this chapter. An individual who violates this chapter is guilty of a class B misdemeanor.

Source:

S.L. 2005, ch. 376, § 1.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-54-03. Registering of home inspectors.

An applicant for a registration as a home inspector shall file a written application in the form prescribed by the registrar. An applicant:

  1. Must be at least eighteen years of age;
  2. Shall submit proof of satisfactory completion of an examination on home inspection offered by the American society of home inspectors, the international association of certified home inspectors, the examination board of professional home inspectors, or the international code council;
  3. Shall submit proof of current errors and omissions insurance coverage in an amount of one hundred thousand dollars or more covering all home inspection activities; and
  4. Shall pay a fee of two hundred dollars.

Source:

S.L. 2005, ch. 376, § 1; 2021, ch. 85, § 19, effective August 1, 2021.

43-54-04. Exceptions to registration requirements.

The registration requirements of this chapter do not apply to:

  1. An individual employed as a code enforcement official by the state or a political subdivision when acting within the scope of that employment.
  2. An individual licensed, certified, or registered under this title when acting within the scope of practice of that individual’s profession or occupation.
  3. An individual engaged as an insurance adjuster when acting within the scope of that engagement.

Source:

S.L. 2005, ch. 376, § 1.

43-54-05. Renewal of registration.

A registration issued under this chapter expires June thirtieth of each calendar year and may be renewed upon submission of a renewal fee of fifty dollars and provision of proof of continuous insurance coverage as required for registration. The application for renewal must be delivered to the secretary of state before July first of each year. The registrar shall cancel the registration of an individual who fails to file a timely application for the renewal of registration. The cancellation must be without notice or opportunity for hearing. An individual whose registration has been canceled and who desires to reregister must file an initial application, pay the initial application fee, and provide proof of current errors and omissions insurance. An individual registered under this chapter may not engage in any activity under this chapter after June thirtieth of any year unless that individual has a valid registration.

Source:

S.L. 2005, ch. 376, § 1; 2019, ch. 92, § 14, effective August 1, 2019.

CHAPTER 43-55 Professional Employer Organizations

43-55-01. Definitions.

As used in this chapter:

  1. “Administrative fee” means the fee charged to a client by a professional employer organization for professional employer services. The term does not include any amount of a fee which is for wages and salaries, benefits, workers’ compensation coverage, payroll taxes, withholding, or other assessment paid by the professional employer organization to or on behalf of a covered employee under a professional employer agreement.
  2. “Client” means any person that enters a professional employer agreement with a professional employer organization.
  3. “Coemployer” means either a professional employer organization or a client.
  4. “Coemployment relationship” means a relationship that is intended to be an ongoing relationship rather than a temporary or project-specific relationship, wherein the rights, duties, and obligations of an employer which arise out of an employment relationship have been allocated between coemployers under a professional employer agreement and this chapter.
  5. “Covered employee” means an individual having a coemployment relationship with a professional employer organization and a client, who has received written notice of coemployment with the professional employer organization, and whose coemployment relationship is under a professional employer agreement subject to this chapter. An individual who is an officer, director, shareholder, partner, or manager of the client is a “covered employee” to the extent the professional employer organization and the client have expressly agreed in the professional employer agreement that the individual is a covered employee and if the individual meets the criteria of this subsection and acts as an operational manager or performs day-to-day operational services for the client.
  6. “Licensee” means a professional employer organization licensed under this chapter.
  7. “Professional employer agreement” means a written contract between a client and a professional employer organization which provides for the coemployment of a covered employee, for the allocation of employer rights and obligations between the client and the professional employer organization with respect to a covered employee, and the assumption of the responsibilities required by this chapter.
  8. “Professional employer organization” means a person engaged in the business of providing professional employer services. The term does not include an arrangement through which a person that does not have as its principal business activity the practice of entering a professional employer arrangement and does not hold itself out as a professional employer organization and that shares an employee with a commonly owned company within the meaning of section 414(b) and (c) of the Internal Revenue Code of 1986; an independent contractor arrangement through which a person assumes responsibility for a product produced or a service performed by the person or the person’s agents and retains and exercises primary direction and control over the work performed by an individual whose services are supplied under the arrangement; or the provision of temporary help services.
  9. “Professional employer services” means the entering of a coemployment relationship under this chapter.
  10. “Temporary help services” means services consisting of a person recruiting and hiring its own employees; finding another organization that needs the services of those employees; assigning those employees to perform work at or services for the other organization to support or supplement the other organization’s workforce, to provide assistance in special work situations, such as an employee absence, skill shortage, or seasonal workload or to perform a special assignment or project; and customarily attempting to reassign the employees to another organization when the employers finish each assignment.

Source:

S.L. 2007, ch. 384, § 1.

43-55-02. Rights, duties, and obligations unaffected.

  1. Neither this chapter nor a professional employer agreement may affect, modify, or amend a collective bargaining agreement or any right or obligation of a client, professional employer organization, or covered employee under federal law.
  2. Neither this chapter nor a professional employer agreement may:
    1. Diminish, abolish, or remove any right of a covered employee to a client or obligation of the client to a covered employee existing before the effective date of the professional employer agreement.
    2. Affect, modify, or amend any contractual relationship or restrictive covenant between a covered employee and a client in effect at the time a professional employer agreement becomes effective or prohibit or amend a contractual relationship or restrictive covenant that is entered subsequently between a client and a covered employee.
  3. A covered employee who is required under law to be licensed, registered, or certified is deemed solely an employee of the client for purposes of the license, registration, or certification requirement.
  4. Unless otherwise provided by this chapter, a professional employer organization is not deemed to engage in any occupation, trade, profession, or other activity that is subject to licensing, registration, or certification requirements or is otherwise regulated solely by entering and maintaining a coemployment relationship with a covered employee who is subject to the requirement.
  5. A client has the sole right of direction and control of the professional or licensed activities of a covered employee and of the client’s business. The covered employee and client remain subject to regulation by the entity responsible for licensing, registration, or certification of the covered employee or client.
  6. For purposes of determination of a tax credit or other economic incentive based on employment, a covered employee is deemed an employee solely of the client. A client is entitled to the benefit of any tax credit, economic incentive, or other benefit arising as the result of the employment of a covered employee of the client. If the grant or amount of the incentive is based on the number of employees, each client must be treated as employing only those covered employees coemployed by the client. A covered employee working for another client of the professional employer organization may not be counted. Each professional employer organization shall provide, upon request by a client or an agency or department of the state, employment information reasonably required for administration of the tax credit or economic incentive and which is necessary to support any request, claim, application, or other action by a client seeking the tax credit or economic incentive.
  7. With respect to a bid, contract, purchase order, or agreement entered with the state or a political subdivision, a client company’s status or certification by any agency of this state as a small, minority-owned, disadvantaged, or woman-owned business enterprise or as a historically underutilized business is not affected because the client company has entered an agreement with a professional employer organization or uses the services of a professional employer organization.

Source:

S.L. 2007, ch. 384, § 1.

43-55-03. Licensing requirements.

  1. A person may not provide, advertise, or otherwise hold itself out as providing professional employer services, unless the person is licensed under this chapter. A person engaged in the business of providing professional employer services shall obtain a license regardless of its use of the term or conducting business as a “professional employer organization”, “staff leasing company”, “registered staff leasing company”, “employee leasing company”, “administrative employer”, or any other name.
  2. Each applicant for licensure shall provide the secretary of state with the following information:
    1. The name of the professional employer organization and any name under which the professional employer organization intends to conduct business in this state.
    2. The designation of organization of the applicant whether domestic or foreign; a corporation, limited liability company, general partnership, limited partnership, limited liability partnership, limited liability limited partnership, sole proprietor, or any other person subject to a governing statute; and the jurisdiction of origin of the organization.
    3. The address of the principal place of business of the professional employer organization and the address of each office it maintains in this state.
    4. The professional employer organization’s taxpayer or employer identification number.
    5. The date of the end of the applicant’s fiscal year.
    6. A list of jurisdictions in which the professional employer organization has operated in the preceding five years, including any alternative names, names of predecessors, and, if known, successor business entities.
    7. A statement of ownership, which must include the name and address of any person that owns or controls twenty-five percent or more of the equity interests of the professional employer organization.
    8. A statement of management, which must include the name and address of any individual who serves as president, chief executive officer, or otherwise has the authority to act as a senior executive officer of the professional employer organization.
    9. A bond as provided under section 43-55-05.
    10. A copy of the employer’s quarterly contribution and wage report to job service North Dakota for the quarter ending immediately before the date submitted to the secretary of state. A professional employer organization that has not filed an employer’s quarterly contribution and wage report with job service North Dakota shall submit a bond in the amount as provided under section 43-55-05.
  3. A license issued under this section is valid for one year and may be renewed within sixty days before the expiration of the license by submitting to the secretary of state:
    1. The information required in subsection 2;
    2. The license fee provided in section 43-55-04; and
    3. A bond as provided under section 43-55-05.
  4. A person applying for licensure or a renewal of licensure shall maintain continuously its organization’s applicable records current and in good standing as otherwise required by law.
  5. The secretary of state shall maintain a list of professional employer organizations licensed under this chapter.

Source:

S.L. 2007, ch. 384, § 1; 2009, ch. 380, § 2.

43-55-04. Fees.

  1. Upon filing of an application for a license, a professional employer organization shall pay a fee of one thousand dollars.
  2. Upon filing of an application for renewal of a license, a professional employer organization shall pay a fee of five hundred dollars.
  3. Any fees collected under this chapter must be deposited in the secretary of state’s operating fund.

Source:

S.L. 2007, ch. 384, § 1.

43-55-05. Bond.

  1. A professional employer organization shall maintain a bond with a minimum value of the lesser amount of one hundred thousand dollars or five percent of the total wages reported on the employer’s quarterly contribution and wage report to job service North Dakota for the quarter ending immediately before the date submitted to the secretary of state.
  2. A professional employer organization that has not filed an employer’s quarterly contribution and wage report with job service North Dakota shall submit a bond in the amount of one hundred thousand dollars.
  3. The bond must be held by the secretary of state and secure payment by the professional employer organization of any tax, wage, benefit, or other entitlement due to or with respect to a covered employee if the professional employer organization does not make the payment when due.
  4. A professional employer organization shall provide the secretary of state notice of cancellation or nonrenewal of the bond required by this section at least forty-five days before cancellation or nonrenewal of the bond.
  5. As used in this section, “bond” means a surety bond or an irrevocable letter of credit.

Source:

S.L. 2007, ch. 384, § 1; 2009, ch. 380, § 3; 2017, ch. 294, § 1, effective August 1, 2017.

43-55-06. General requirements.

  1. Except as specifically provided in this chapter or in a professional employer agreement, in each coemployment relationship:
    1. The client is entitled to exercise all rights and is obligated to perform all duties and responsibilities otherwise applicable to an employer in an employment relationship.
    2. The professional employer organization is entitled to exercise only those rights and obligated to perform only those duties and responsibilities specifically required by this chapter or set forth in the professional employer agreement. The rights, duties, and obligations of the professional employer organization as coemployer with respect to any covered employee are limited to those arising under the professional employer agreement and this chapter during the term of coemployment by the professional employer organization of the covered employee.
    3. The client retains the exclusive right to direct and control any covered employee as is necessary to conduct the client’s business, to discharge any of the client’s fiduciary responsibilities, or to comply with any licensure requirements applicable to the client or to a covered employee.
  2. Except as specifically provided in this chapter, a coemployment relationship between the client and the professional employer organization, and between each coemployer and each covered employee, must be governed by the professional employer agreement. Each professional employer agreement must include:
    1. The allocation of rights, duties, and obligations.
      1. A statement that provides that:
        1. The professional employer organization shall pay wages to any covered employee and shall withhold, collect, report, and remit payroll-related and unemployment taxes on wages paid to the covered employee by the professional employer organization;
        2. The client shall accurately report all wages of a covered employee to the professional employer organization; and
        3. The professional employer organization shall make payments for employee benefits for covered employees to the extent the professional employer organization has assumed responsibility in the professional employer agreement.
      2. As used in this subdivision, the term “wages” means all remuneration for services to the professional employer organization and the client, regardless of source, including a commission or bonus and the cash value of any remuneration in a medium other than cash. Any gratuity customarily received by an individual in the course of the individual’s service from any source other than the client or the professional employer organization must be treated as wages received from the individual’s coemployers.
    2. A statement providing that the professional employer organization has the right to hire, discipline, and terminate a covered employee as may be necessary to fulfill the professional employer organization’s responsibilities under this chapter and the professional employer agreement and that the client has the right to hire, discipline, and terminate a covered employee.
    3. A statement addressing the responsibility to obtain workers’ compensation coverage.
  3. Under each professional employer agreement entered by a professional employer organization, the professional employer organization shall provide written notice to each covered employee affected by the agreement of the general nature of the coemployment relationship.
  4. Except to the extent otherwise expressly provided by a professional employer agreement:
    1. A client is solely responsible for the quality, adequacy, or safety of the goods or services produced or sold in the client’s business.
    2. A client is solely responsible for directing, supervising, training, and controlling the work of a covered employee with respect to the business activities of the client and solely responsible for any act, error, or omission of a covered employee relating to those activities.
    3. A client is not liable for any act, error, or omission of a professional employer organization or of any covered employee of the client and a professional employer organization if the covered employee is acting under the express direction and control of the professional employer organization.
    4. A professional employer organization is not liable for any act, error, or omission of a client or of any covered employee of the client if the covered employee is acting under the express direction and control of the client.
    5. This subsection does not limit any contractual liability or obligation specifically provided in the written professional employer agreement.
    6. A covered employee is not, solely as the result of being a covered employee of a professional employer organization, an employee of the professional employer organization for purposes of general liability insurance, fidelity bond, surety bond, employer’s liability not covered by workers’ compensation, or liquor liability insurance carried by the professional employer organization unless the covered employee is included by specific reference in the professional employer agreement and applicable prearranged employment contract, insurance contract, or bond.
  5. A professional employer organization is not engaged in the sale of insurance or in acting as a third-party administrator by offering, marketing, selling, administering, or providing professional employer services which include services and employee benefit plans for a covered employee.
  6. Nothing in this chapter or in a professional employer agreement may be construed to affect the provisions of section 52-04-24 or 65-01-08.

Source:

S.L. 2007, ch. 384, § 1.

43-55-07. Benefit plans.

  1. Both a client and a professional employer organization are deemed to be an employer for purposes of sponsoring retirement and welfare benefit plans for a covered employee.
  2. A fully insured welfare benefit plan offered to the covered employees of a professional employer organization is considered a single employer welfare benefit plan and may not be considered a multiple employer welfare arrangement.
  3. For purposes of chapter 26.1-36.3, a professional employer organization is considered the employer of all of its covered employees, and all covered employees of any client participating in a health benefit plan sponsored by a single professional employer organization are considered employees of the professional employer organization.
  4. If a professional employer organization offers to its covered employees any health benefit plan that is not fully insured by an authorized insurer, the plan must:
    1. Utilize an authorized third-party administrator;
    2. Hold all plan assets, including participant contributions, in a trust account;
    3. Provide sound reserves for the plan as determined using generally accepted actuarial standards; and
    4. Provide written notice to each covered employee participating in the benefit plan that the plan is self-insured or is not fully insured.

Source:

S.L. 2007, ch. 384, § 1.

43-55-08. Disciplinary actions — Complaints — Adjudicative proceedings — Penalties — Appeals.

  1. The secretary of state may:
    1. Deny an application for a professional employer organization license;
    2. Suspend a professional employer organization license for a period of not more than sixty months;
    3. Request the attorney general to bring an action in district court to recover restitution or penalties imposed under this chapter; or
    4. Not renew or issue a new professional employer organization license until a professional employer organization has paid any civil penalty or restitution imposed under this chapter.
  2. Any person acting in the capacity of a professional employer organization without a license is guilty of a class A misdemeanor. In addition to the license fee due if the person subsequently applies for a license, the person may be assessed a civil penalty by the secretary of state, following written notice to the person of an intent to assess the penalty, in an amount not to exceed three times the amount of the license fee.
  3. An individual may file a duly verified complaint with the secretary of state charging that the professional employer organization is guilty of any of the following:
    1. The conviction of the professional employer organization or a controlling person of the professional employer organization of a crime that relates to the operation of the professional employer organization or which relates to fraud or deceit or the ability of the professional employer organization or the controlling person of the professional employer organization to operate the professional employer organization;
    2. An individual knowingly making a material misrepresentation or providing false or fraudulent information to the secretary of state or other governmental agency; or
    3. A willful violation of this chapter.
  4. A complaint must be on a form approved by the secretary of state and must set forth sufficient facts upon which a reasonable individual could conclude that any of the acts or omissions in subsection 3 has been committed.
  5. The secretary of state shall review a complaint filed under this section. If the secretary of state determines a complaint provides sufficient facts upon which a reasonable individual could conclude that one or more of the acts or omissions set forth in subsection 3 has been committed, the secretary of state may initiate an adjudicative proceeding under chapter 28-32. If, after an adjudicative proceeding or as part of an informal disposition under chapter 28-32, the secretary of state determines that the professional employer organization is guilty of an act or omission charged or if the licensee admits guilt to an act or omission charged, the secretary of state may:
    1. Suspend or revoke the professional employer organization license;
    2. Order an administrative penalty of not more than one thousand dollars for each material violation;
    3. Order restitution in an amount not exceeding five thousand dollars;
    4. Issue a cease and desist order; or
    5. Impose a lesser sanction or remedy.
  6. Any act or omission under subsection 3 may also constitute grounds for the attorney general to bring an action under chapter 51-15 and may subject the professional employer organization to all provisions, procedures, remedies, and penalties provided for in chapter 51-15.
  7. A professional employer organization aggrieved by a decision of the secretary of state in denying, revoking, or suspending the professional employer organization license or ordering restitution or penalties may appeal the decision to the district court of Burleigh County.
  8. A professional employer organization may not obtain a license under any name after the denial of an application for a license or during the period of a revocation or suspension. For the purposes of this subsection, a professional employer organization that has had an application for a license denied or which has had a license revoked or suspended includes any officer, director, agent, member, or employee of the professional employer organization.
  9. Upon request of the secretary of state or attorney general, a professional employer organization promptly shall provide an audited financial statement verified by a certified public accountant licensed to practice in the jurisdiction in which the accountant is located.

Source:

S.L. 2007, ch. 384, § 1; 2009, ch. 380, § 1.

43-55-09. Confidential records.

  1. The social security number or federal tax identification number disclosed or contained in an application filed with the secretary of state under this chapter is confidential. The secretary of state shall delete or obscure any social security number or federal tax identification number before a copy of an application is released to the public.
  2. All audited financial reports and the employers’ quarterly contribution and wage report to job service North Dakota are confidential except to the extent necessary for the proper administration of this chapter by the secretary of state or the attorney general.

Source:

S.L. 2009, ch. 380, § 4.

43-55-10. Interagency cooperation.

A state agency, in performing duties under other laws that affect the regulation of professional employer organizations, shall cooperate with the secretary of state as necessary to administer and enforce this chapter.

Source:

S.L. 2009, ch. 380, § 4.

CHAPTER 43-57 Integrative Health Care

43-57-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the state board of integrative health care.
  2. “Licensee” means an individual licensed by the board under this chapter and under chapter 43-58, 43-59, 43-61, or 43-64.

Source:

S.L. 2011, ch. 331, § 3; 2015, ch. 308, § 3, effective July 1, 2015; 2019, ch. 364, § 17, effective July 1, 2019.

43-57-02. Board — Qualifications — Appointment — Term of office — Compensation.

  1. The governor shall appoint the state board of integrative health care, which must consist of at least five members. Each profession regulated by the board must have one member on the board representing that profession. In addition, one member must be a doctor of medicine or osteopathy, one member must be a pharmacist, one member must be an advanced practice registered nurse, and at least one but no more than two members must be laypersons. If a doctor of medicine or osteopathy is not willing and able to serve, the governor may appoint an advanced practice registered nurse to fill this position. A board member must be a resident of this state. The professional members must be licensed to practice in this state, except the initial appointment for a newly regulated profession, who must be eligible for licensure. The layperson must be at least twenty-one years of age and may not be affiliated with any organization or profession that represents, provides, or regulates health care.
  2. The term of office of each board member is three years with appointments distributed evenly from year to year. A member may not serve more than two consecutive full terms.
  3. The governor may remove any board member for good cause after giving that member a written statement of the reasons for removal and after that member has had an opportunity for a hearing.
  4. Each board member shall serve without compensation but is entitled to receive expenses as provided in section 54-06-09 and per diem as must be fixed by the board.
  5. Annually, board members shall elect a chairman to preside at meetings of the board and a vice chairman to preside at meetings of the board in the chairman’s absence.

Source:

S.L. 2011, ch. 331, § 3.

43-57-02.1. Compensation — Expenses of board.

A member of the board is entitled to receive for each day during which the member actually is engaged in the performance of the duties of the member’s office per diem as determined by the board and mileage as provided in section 54-06-09. The secretary of the board is entitled to receive salary or other compensation and allowance for clerical and other expenses of the board as the board determines.

Source:

S.L. 2021, ch. 326, § 1, effective August 1, 2021.

43-57-03. Powers and duties of board.

  1. The board shall adopt rules:
    1. To administer and enforce this chapter and chapters 43-58, 43-59, 43-61, and 43-64;
    2. That specify the scope of practice, which must be consistent with the required education for each profession regulated by the board;
    3. To establish any exemptions from licensure;
    4. That endorse equivalent licensure examinations of another state or foreign country and which may include licensure by reciprocity;
    5. That establish educational standards for each profession regulated by the board as appropriate; and
    6. That set fees for licensure, which may include:
      1. Application fee;
      2. License fee;
      3. Renewal fee;
      4. Late fee;
      5. Administrative fees; and
      6. Continuing education fees.
  2. The board shall produce an annual list of the names and level of licensure of all individuals licensed by the board and make the list available upon request.
  3. The board may employ staff and provide for staff compensation.
  4. The board shall receive all moneys collected under this chapter and chapters 43-58, 43-59, 43-61, and 43-64 and shall deposit and disburse all fees and moneys collected in accordance with section 54-44-12.
  5. The board may establish continuing education requirements for license renewal.
  6. The board may adopt a code of ethics for each profession regulated by the board.
  7. The board may adopt rules allowing students to practice under licensed supervision.

Source:

S.L. 2011, ch. 331, § 3; 2015, ch. 308, § 4, effective July 1, 2015; 2019, ch. 364, § 18, effective July 1, 2019.

43-57-04. Board duties in regulating professions — Subgroups.

  1. The board shall establish a subgroup for each profession regulated by the board. The board shall appoint at least three and no more than five members of the profession to serve as volunteer members of the subgroup. A subgroup member must be a licensed member of the profession, except in the case of a newly regulated profession in which case each subgroup member must be eligible for licensure. The board may appoint a board member to serve on a subgroup representing that board member’s profession. The subgroup members serve at the pleasure of the board.
  2. A subgroup established under this section shall serve in an advisory capacity to advise the board when requested by the board. The subgroup on its own motion may advise the board as the subgroup determines necessary.
  3. The board may not take any action that impacts a profession regulated by the board as a whole or which impacts one or more licensees of that profession unless the board first consults with and requests the recommendation of the appropriate subgroup. If the board takes an action that is contrary to a subgroup’s recommendation, the board shall articulate in writing why the subgroup’s recommendation was not followed.

Source:

S.L. 2011, ch. 331, § 3.

43-57-05. Petition to the board — Inclusion as a board-regulated profession — Consideration of additional health care professions.

  1. An existing occupational or professional board of this state or agency of this state which regulates the practice of a health profession or a representative of a health profession that is not regulated by this state may submit to the board a petition and proposed bill draft requesting inclusion of that health profession as a profession regulated by the board. Upon receipt of a petition and proposed bill draft submitted under this section, the board shall review the petition and may work with the person submitting the petition to provide assistance in accomplishing this requested inclusion.
  2. If a committee of the legislative assembly considers a measure to regulate a health care profession with fewer than fifty likely members, the committee shall consider whether it is desirable and feasible to have the state board of integrative health, some other existing board, or an existing state agency regulate that profession rather than create a new board.
  3. If the membership of a board-regulated profession increases to at least one hundred licensees, the board may introduce legislation creating an independent board to regulate that profession.

Source:

S.L. 2011, ch. 331, § 3.

43-57-06. Issuance of license — Expedited.

  1. If the board determines an applicant possesses the qualifications required under this chapter and under chapter 43-58, 43-59, 43-61, or 43-64, the board shall issue a license to the applicant.
  2. The board shall establish an expedited procedure for licensure of an applicant who is certified by a professional organization identified by the board by rule or who holds a valid license or certificate of registration in another jurisdiction. The board may grant a provisional license to an expedited licensure applicant while the expedited license application is pending.

Source:

S.L. 2011, ch. 331, § 3; 2015, ch. 308, § 5, effective July 1, 2015; 2019, ch. 364, § 19, effective July 1, 2019.

43-57-07. License renewal — Continuing education.

  1. A license is effective when granted by the board.
  2. A license issued under chapter 43-58 or 43-59 expires on December thirty-first of every odd-numbered year. A license issued under chapter 43-61 or 43-64 expires on December thirty-first of every even-numbered year.
  3. A license may be renewed by payment of the renewal fee and completion of any continuing education requirements set by the board, provided the applicant’s license is not currently revoked or grounds for denial do not exist.
  4. If the application for renewal is not received on or before the expiration date, the license expires and the individual may not practice until a new application is made and a license is granted by the board.
  5. At the time of renewal, the board shall require each applicant to present satisfactory evidence that the applicant has completed any continuing education requirements specified by the board.
  6. If a license has not been renewed as a result of nonpayment of the renewal fee or the failure of the licensee to present satisfactory evidence of completion of any continuing education requirements, the licensee must reapply for licensure.
  7. The board may extend the renewal deadline for an applicant having proof of medical or other hardship rendering the applicant unable to meet the renewal deadline.

Source:

S.L. 2011, ch. 331, § 3; 2015, ch. 308, § 6, effective July 1, 2015; 2019, ch. 364, § 20, effective July 1, 2019.

43-57-08. Discipline.

  1. The board may take disciplinary action against a licensee by any of the following means:
    1. Revocation of license;
    2. Suspension of license;
    3. Probation;
    4. Imposition of stipulations, limitations, or conditions relating to the licensee’s practice;
    5. Letter of censure;
    6. Require the licensee to provide free public or charitable service for a defined period; and
    7. Impose fines, not to exceed five thousand dollars for any single disciplinary action. Any fines collected by the board must be deposited in the state general fund.
  2. Disciplinary action may be imposed against a licensee upon any of the following grounds:
    1. The use of any false, fraudulent, or forged statement or document, or the use of any fraudulent, deceitful, dishonest, or immoral practice, in connection with any of the licensing requirements.
    2. The making of false or misleading statements about the licensee’s skill or the efficacy of any medicine, treatment, or remedy.
    3. The conviction of any misdemeanor determined by the board to have a direct bearing upon the licensee’s ability to serve the public or any felony. A license may not be withheld contrary to the provisions of chapter 12.1-33.
    4. Habitual use of alcohol or drugs.
    5. Physical or mental disability materially affecting the ability to perform the duties of the profession in a competent manner.
    6. The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
    7. Obtaining any fee by fraud, deceit, or misrepresentation.
    8. Aiding or abetting the practice of the profession by an unlicensed, incompetent, or impaired person.
    9. The violation of any provision of the rules of the board, or any action, stipulation, condition, or agreement imposed by the board.
    10. The practice of the profession under a false or assumed name.
    11. The advertising for the practice of the profession in an untrue or deceptive manner.
    12. The representation to a patient that a manifestly incurable condition, sickness, disease, or injury can be cured.
    13. The willful or negligent violation of the confidentiality between licensee and patient, except as required by law.
    14. Gross negligence in the practice of the profession.
    15. Sexual abuse, misconduct, or exploitation related to the licensee’s practice of the profession.
    16. A continued pattern of inappropriate care.
    17. The imposition by another state or jurisdiction of disciplinary action against a license or other authorization to practice based upon acts or conduct by the licensee which would constitute grounds for disciplinary action as set forth in this section. A certified copy of the record of the action taken by the other state or jurisdiction is conclusive evidence of that action.
    18. The lack of appropriate documentation in medical records for diagnosis, testing, and treatment of patients.

Source:

S.L. 2011, ch. 331, § 3.

43-57-09. Disciplinary proceedings — Appeals.

  1. Upon the filing of a written and signed complaint that alleges that a licensee practicing in this state has engaged in conduct identified as grounds for disciplinary action under this chapter, and which sets forth information upon which a reasonable and prudent person might believe that further inquiry should be made, the board shall cause the matter to be investigated.
  2. The board may investigate a complaint on the board’s own motion, without requiring the identity of the complainant to be made a matter of public record, if the board concludes that good cause exists for preserving the anonymity of the complainant.
  3. If the investigation reveals no grounds to support the complaint, the board, three years following the date on which the complaint was filed, shall expunge the complaint from the licensee’s individual record in the board’s office.
  4. If the investigation reveals grounds to support the complaint, the board shall initiate a disciplinary action by serving upon the licensee a notice of disciplinary action setting forth the allegations upon which the action is based, as well as a specification of the issues to be considered and determined.
  5. If a written response contesting the allegations is not received by the board within twenty days of the date that the notice of disciplinary action was received or refused, the allegations may be deemed admitted and disciplinary sanctions deemed appropriate by the board must be imposed.
  6. The board may at any time enter an informal resolution to resolve the complaint or disciplinary action.
  7. An appeal from the board’s final decision may be taken in accordance with chapter 28-32.

Source:

S.L. 2011, ch. 331, § 3.

43-57-10. Disciplinary proceedings — Cost of prosecution.

In any order or decision issued by the board in resolution of a disciplinary proceeding in which disciplinary action is imposed against a licensee, the board may direct the licensee to pay the board a sum not to exceed the reasonable and actual costs, including reasonable attorney’s fees, incurred by the board in the investigation and prosecution of the case. When applicable, the licensee’s license may be suspended until the costs are paid to the board. A licensee may challenge the reasonableness of any cost item in a hearing under chapter 28-32 before an administrative law judge. The administrative law judge may approve, deny, or modify any cost item, and the determination of the administrative law judge is final. The administrative hearing must occur before the licensee’s license may be suspended for nonpayment.

Source:

S.L. 2011, ch. 331, § 3.

43-57-11. Enforcement — Penalty.

A person that violates this chapter or chapter 43-58, 43-59, 43-61, or 43-64 is guilty of a class B misdemeanor. In addition to the criminal penalties provided under this section, the civil remedy of injunction is available to restrain and enjoin any violation of this chapter or chapter 43-58, 43-59, 43-61, or 43-64 without proof of actual damages sustained by any person.

Source:

S.L. 2011, ch. 331, § 3; 2015, ch. 308, § 7, effective July 1, 2015; 2019, ch. 364, § 21, effective July 1, 2019.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-58 Naturopaths

43-58-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Approved naturopathic medical college” means a college and program granting the degree of doctor of naturopathy or naturopathic medicine which must require as a minimum a four-year, full-time resident program of academic and clinical study and which:
    1. Is accredited, or has the status of candidate for accreditation, by an organization approved by the board, such as the council on naturopathic medical education; or
    2. Has been approved by the board after an investigation that determines that the college or program meets education standards equivalent to those established by the accrediting agency under subdivision a and complies with the board’s rules.
  2. “Board” means the state board of integrative health care created under chapter 43-57.
  3. “Homeopathic preparations” means nonprescriptive substances prepared according to the official homeopathic pharmacopoeia of the United States. The term does not include prescriptive drugs.
  4. “Licensee” means an individual licensed by the board under this chapter.
  5. “Naturopath” means an individual licensed to practice naturopathic health care under this chapter.
  6. “Naturopathic health care”, “naturopathic medicine”, or “naturopathy” means a system of primary health care practiced by naturopaths for the prevention, diagnosis, and treatment of human health conditions, injury, and disease. The purpose of naturopathic health care, naturopathic medicine, or naturopathy is to promote or restore health by the support and stimulation of the individual’s inherent self-healing processes. This is accomplished through education of the patient by a naturopath and through the use of natural therapies and therapeutic substances.
  7. “Naturopathic physical application” means the therapeutic use by a naturopath of the actions or devices of electrical muscle stimulation, galvanic, diathermy, ultrasound, ultraviolet light, hydrotherapy, and naturopathic manipulative therapy. The term does not include manipulation of the spine.

Source:

S.L. 2011, ch. 331, § 4.

Collateral References.

Liability of chiropractors and other drugless practitioners for medical malpractice, 77 A.L.R.4th 273.

43-58-02. Exemptions.

Many of the therapies used by a naturopath, such as the use of nutritional supplements, herbs, foods, homeopathic preparations, and such physical forces as heat, cold, water, touch, and light, are not the exclusive privilege of naturopaths, and their use, practice, prescription, or administration by individuals not licensed to practice naturopathic medicine is not prohibited by this chapter. This chapter does not restrict or apply to the scope of practice of any other profession licensed, certified, or registered under the laws of this state.

Source:

S.L. 2011, ch. 331, § 4.

43-58-03. License required — Title restrictions.

  1. Effective January 1, 2012, a person may not practice naturopathy without a current naturopathic license issued by the board.
  2. A naturopath may use the title “naturopath” or “doctor of naturopathic medicine” and the abbreviation “N.D.” when used to reflect either of these titles. Effective January 1, 2012, a person that uses these terms or initials as identification without having received a naturopathic license under this chapter is engaging in the practice of naturopathy without a license.

Source:

S.L. 2011, ch. 331, § 4.

43-58-04. Qualifications for licensure.

In order to obtain a license to practice naturopathic medicine in this state, an application must be made to the board. The application must be upon the form adopted by the board and must be made in the manner prescribed by the board.

Source:

S.L. 2011, ch. 331, § 4.

43-58-05. Application for licensure.

  1. An applicant for naturopathic licensure shall file an application on forms provided by the board showing to the board’s satisfaction that the applicant is of good moral character and satisfied all of the requirements of this chapter and chapter 43-57, including:
    1. Successful graduation of an approved naturopathic medical college;
    2. Successful completion of an examination prescribed or endorsed by the board, such as part I and part II of the naturopathic physicians licensing examinations;
    3. Physical, mental, and professional capability for the practice of naturopathic medicine in a manner acceptable to the board; and
    4. A history free of any finding by the board, any other state licensure board, or any court of competent jurisdiction of the commission of any act that would constitute grounds for disciplinary action under this chapter and chapter 43-57. The board may modify this restriction for cause.
  2. The application must be accompanied by the board-established license fees and application fees and by the documents, affidavits, and certificates necessary to establish that the applicant possesses the necessary qualifications.

Source:

S.L. 2011, ch. 331, § 4.

43-58-06. Initial applications — Education and testing exception.

Notwithstanding the education and examination requirements for licensure under subdivisions a and b of subsection 1 of section 43-58-05, if an applicant was a bona fide resident of the state from January 1, 2011, through December 31, 2011, was practicing naturopathic medicine in this state immediately preceding January 1, 2012, was required to apply for licensure under this chapter in order to continue that practice, and does not meet the educational or examination requirements or both, the board may issue a license or limited license to that applicant if, following an examination of the applicant’s education and experience, the board determines the applicant has sufficient education and experience to prepare the applicant to practice naturopathic medicine.

Source:

S.L. 2011, ch. 331, § 4.

43-58-07. Licensure granted without examination to individuals licensed in other states.

  1. The board may issue a naturopathic license by endorsement to an applicant who has complied with licensure requirements and who has passed an examination given by a recognized certifying agency approved by the licensing agency if the board determines the examination was equivalent in every respect to the examination required under this chapter.
  2. The board may enter reciprocal agreements with licensing agencies of other states providing for reciprocal waiver of further examination or any part of the examination.
  3. If an applicant is exempt from the examination required under this chapter, the applicant shall comply with the other requirements for licensure. The board may adopt rules allowing for temporary and special licensure to be in effect during the interval between board meetings.

Source:

S.L. 2011, ch. 331, § 4.

43-58-08. Practice of naturopathic health care.

  1. A naturopath may practice naturopathic medicine as a limited practice of the healing arts as exempted under section 43-17-02. A naturopath may not:
    1. Prescribe, dispense, or administer any prescription drug;
    2. Administer ionizing radioactive substances for therapeutic purposes;
    3. Perform a surgical procedure; or
    4. Claim to practice any licensed health care profession or system of treatment other than naturopathic medicine unless holding a separate license in that profession. A naturopath may not hold out to the public that the naturopath is a primary care provider.
  2. A naturopath may prescribe and administer for preventive and therapeutic purposes a prescriptive device and the following nonprescriptive natural therapeutic substances, drugs, and therapies:
    1. Food, vitamins, minerals, dietary supplements, enzymes, botanical medicines, and homeopathic preparations;
    2. Topical drugs, health care counseling, nutritional counseling and dietary therapy, naturopathic physical applications, and therapeutic devices; and
    3. Barrier devices for contraception.
  3. A naturopath may perform or order for diagnostic purposes a physical or orificial examination, ultrasound, phlebotomy, clinical laboratory test or examination, physiological function test, and any other noninvasive diagnostic procedure commonly used by physicians in general practice and as authorized by the board.

Source:

S.L. 2011, ch. 331, § 4.

43-58-09. Public health duties.

A naturopath has the same powers and duties as a licensed physician with regard to public health laws, reportable diseases and conditions, communicable disease control and prevention, recording of vital statistics, health and physical examinations, and local boards of health, except that the authority and responsibility are limited to activities consistent with the scope of practice established under this chapter and chapter 43-57.

Source:

S.L. 2011, ch. 331, § 4.

43-58-10. Employment by hospitals.

A hospital may employ a naturopath in the same manner as provided under section 43-17-42.

Source:

S.L. 2011, ch. 331, § 4.

CHAPTER 43-59 Music Therapists

43-59-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the state board of integrative health care created under chapter 43-57.
  2. “Licensee” means an individual licensed by the board under this chapter.
  3. “Music therapist” is an individual who practices music therapy.
  4. “Music therapy” is the specialized use of music and the materials of music to restore, maintain, and improve the following areas of functioning: cognitive, psychological, social or emotional, affective, physical, sensory or sensorimotor, motor, communicative, and physiological functioning. Techniques used in the practice of music therapy include the use of music to provide participatory individual and group experiences; musical improvisation; therapeutic development of verbal skills and nonverbal behavior; receptive music learning; lyric discussions; memory recall; music and imagery; self-expression through composition and songwriting; socialization and enhancement of self-esteem through music performance; relaxation to music, including stress and pain management; learning through music; cultural and spiritual expression; development of fine and gross motor skills through responses to rhythm; respiratory and speech improvements through sound production; sensory integration and stimulation; increased awareness of music for development of recreation and leisure interests; and interactive verbal techniques to help facilitate, elicit, or summarize the techniques listed in this subsection and build the therapeutic relationship.

Source:

S.L. 2011, ch. 331, § 5.

43-59-02. Music therapy — License required — Title restrictions — Exceptions.

  1. Effective August 1, 2012, a person may not hold out as practicing music therapy, hold out as being a music therapist, or use a title or other designation indicating the person is a music therapist in this state unless that person is an individual licensed under this chapter and chapter 43-57.
  2. The licensure provisions of this chapter do not prevent or restrict the practice, services, or activities of any individual licensed in another profession or any individual supervised by a licensed professional from performing work incidental to the practice of that profession or occupation, if that individual does not represent the individual as a music therapist.

Source:

S.L. 2011, ch. 331, § 5.

43-59-03. Qualifications for licensure.

  1. In order to obtain a license to practice music therapy in this state, an application must be made to the board. The application must be upon the form adopted by the board and must be made in the manner prescribed by the board.
  2. An applicant for licensure to practice music therapy shall file an application on forms provided by the board showing to the board’s satisfaction that the applicant is an individual of good moral character, is at least eighteen years of age, and satisfied all the requirements established by the board which may include:
    1. Successful graduation of a board-approved educational program;
    2. Successful completion of a board-approved examination prescribed or endorsed by the board;
    3. Hold in good standing a board-approved designation, such as:
      1. A music therapist board-certified credential from the certification board for music therapists; or
      2. A professional designation from the national music therapy registry, which may include registered music therapist, certified music therapist, and advanced certified music therapist.
    4. Physical, mental, and professional capability for the practice of music therapy in a manner acceptable to the board;
    5. A history free of any finding by the board, any other state licensure board, or any court of competent jurisdiction of the commission of any act that would constitute grounds for disciplinary action under this chapter or chapter 43-57. The board may modify this restriction for cause.
  3. The application must be accompanied by the board-established license fees and application fees and by the documents, affidavits, and certificates necessary to establish that the applicant possesses the necessary qualifications.

Source:

S.L. 2011, ch. 331, § 5.

CHAPTER 43-60 Genetic Counseling

43-60-01. Definitions.

In this chapter:

  1. “ABGC” means the American board of genetic counseling.
  2. “ABMG” means the American board of medical genetics.
  3. “Board” means the North Dakota board of medicine.
  4. “Genetic counseling” means a communication process, conducted by appropriately trained individuals which includes:
    1. Assisting an individual, the individual’s family, a health care provider, or the public with comprehending the issues inherent to genetic counseling. Such assistance may include:
      1. Appreciating the medical, psychological, and social implications of a disorder, including features, variability, usual course, and management options;
      2. Learning how genetic factors contribute to the disorder and affect the chance for recurrence of the condition in other family members;
      3. Understanding available options for coping with, preventing, or reducing the chance of occurrence or recurrence of a condition;
      4. Selecting the most appropriate, accurate, and cost-effective methods to determine risk for genetic conditions and diseases; and
      5. Understanding genetic tests, including diagnostic genetic tests, screening tests, or predispositional genetic tests; coordinating testing for inherited disorders; and explaining complex genetic test results;
    2. Assessing the likelihood of the occurrence or recurrence of an abnormality in the pregnancy in structure, function, or metabolism or of any potentially inherited or genetically influenced condition. Such assessment may include the following:
      1. Obtaining and analyzing a complete health history of an individual and the individual’s family;
      2. Reviewing pertinent medical records;
      3. Evaluating the risks from exposure to possible mutagens or teratogens; and
      4. Discussing genetic testing or other evaluations to identify a condition or determine the carrier status of one or more family members; and
    3. Facilitating an individual’s or family’s:
      1. Exploration of the perception of risk and burden associated with a genetic disorder;
      2. Decisionmaking regarding testing or medical interventions consistent with the individual’s or family’s beliefs, goals, needs, or resources or with the individual’s or family’s cultural, ethical, or moral views; and
      3. Adjustment and adaptation to the condition or the genetic risk by addressing needs for psychological, social, and medical support.
  5. “Genetic counselor” means an individual licensed under this chapter to engage in the practice of genetic counseling.
  6. “Supervision” means ongoing direct clinical review for the purposes of training or teaching, by a supervisor approved by the board who monitors the performance or an individual’s supervised interaction with a client and provides regular documented face-to-face consultation, guidance, and instructions with respect to the clinical skills and competencies of the supervised individual. This supervision may be by personal contact or indirect contact by telecommunication.

Source:

S.L. 2013, ch. 336, § 1; 2015, ch. 297, § 39, effective August 1, 2015.

Collateral References.

Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth, 74 A.L.R.4th 798.

43-60-02. Practice of genetic counseling — Exemptions. [Effective through August 31, 2022]

  1. A person may not engage in the practice of genetic counseling, act or represent to be a genetic counselor, or use such titles as genetic counselor, licensed genetic counselor, gene counselor, genetic associate, or any words, letters, abbreviations, or insignia, such as certified genetic counselor or CGC, indicating or implying that person is a genetic counselor, unless the person is an individual who holds a license or temporary license issued by the board under this chapter and otherwise complies with the provisions of this chapter. An individual who is exempt from the licensure requirements of this chapter may not use a title indicating or implying the individual is a genetic counselor.
  2. Genetic testing may be provided by a licensed genetic counselor only when ordered by a North Dakota licensed health care provider acting within the provider’s scope of practice and privileged to do so. The referring or primary provider shall maintain supervision of patient care and the licensed genetic counselor shall provide reports to the referring or primary health care provider ordering such testing.
  3. The following individuals may engage in the practice of genetic counseling without being licensed under this chapter:
    1. A licensed health care professional practicing within the professional’s scope of practice;
    2. A student or intern from a board-recognized school;
    3. An individual trained as a Ph.D. medical geneticist;
    4. A consultant from another state who is board-certified by the ABGC or the ABMG, for the limited purpose of consulting with a genetic counselor;
    5. An employee of the state department of health in the provision of education regarding single gene conditions, including sickle cell, cystic fibrosis, and hemoglobinopathies; and
    6. An individual acting within the scope of religious ministerial duties.

Source:

S.L. 2013, ch. 336, § 1.

43-60-02. Practice of genetic counseling — Exemptions. [Effective September 1, 2022]

  1. A person may not engage in the practice of genetic counseling, act or represent to be a genetic counselor, or use such titles as genetic counselor, licensed genetic counselor, gene counselor, genetic associate, or any words, letters, abbreviations, or insignia, such as certified genetic counselor or CGC, indicating or implying that person is a genetic counselor, unless the person is an individual who holds a license or temporary license issued by the board under this chapter and otherwise complies with the provisions of this chapter. An individual who is exempt from the licensure requirements of this chapter may not use a title indicating or implying the individual is a genetic counselor.
  2. Genetic testing may be provided by a licensed genetic counselor only when ordered by a North Dakota licensed health care provider acting within the provider’s scope of practice and privileged to do so. The referring or primary provider shall maintain supervision of patient care and the licensed genetic counselor shall provide reports to the referring or primary health care provider ordering such testing.
  3. The following individuals may engage in the practice of genetic counseling without being licensed under this chapter:
    1. A licensed health care professional practicing within the professional’s scope of practice;
    2. A student or intern from a board-recognized school;
    3. An individual trained as a Ph.D. medical geneticist;
    4. A consultant from another state who is board-certified by the ABGC or the ABMG, for the limited purpose of consulting with a genetic counselor;
    5. An employee of the department of health and human services in the provision of education regarding single gene conditions, including sickle cell, cystic fibrosis, and hemoglobinopathies; and
    6. An individual acting within the scope of religious ministerial duties.

Source:

S.L. 2013, ch. 336, § 1; 2021, ch. 352, § 373, effective September 1, 2022.

43-60-03. Application for licensure.

  1. An applicant for licensure under this chapter shall pay any filing fee and file an application, on forms provided by the board, to the satisfaction of the board that the applicant is of good moral character and satisfies all of the requirements of this chapter, including:
    1. Education at one of the following levels:
      1. Master of science degree from a genetic counseling training program that is accredited by the ABGC or an ABGC-approved equivalent organization and approved by the board; or
      2. Doctoral degree from a medical genetics training program that is accredited by the ABMG and approved by the board; and
    2. Successful completion of all requirements of the certification examination within a period not to exceed four years from initial examination to successful completion and with no more than three attempts;
    3. Physical, mental, and professional capability for the practice of genetic counseling in a manner acceptable to the board; and
    4. A history free of any finding by the board, by any other state licensing board, or by any court of competent jurisdiction which would constitute grounds for disciplinary action under this chapter. The board may modify this restriction for cause.
  2. In compliance with chapter 43-17, the board may refuse to grant a license under this chapter if any of the license requirements are not met.

Source:

S.L. 2013, ch. 336, § 1.

43-60-04. Temporary license.

  1. The board may issue a temporary license to an applicant who pays the temporary license fee and meets all the qualifications for licensure, except the successful completion of the certification examination if the applicant submits evidence to the board that the applicant is a candidate accepted to write the certification examination.
  2. A temporary licensee shall take the certification examination within eighteen months of obtaining the temporary license. If a temporary licensee fails the first sitting of the certification examination or the temporary license expires, the temporary licensee may reapply for another temporary license. A temporary license may not be issued or reissued if the applicant failed the certification examination three times.
  3. A temporary license expires on the occurrence of the following:
    1. Issuance of a regular license;
    2. Failure to pass the board-approved examination; or
    3. Expiration of the term for which the temporary license was issued.
  4. A temporary licensee’s practice is limited to practice under the supervision of a licensed genetic counselor or under the supervision of a physician approved by the board if that physician has a current ABMG certification in clinical genetics.

Source:

S.L. 2013, ch. 336, § 1.

43-60-05. License renewal.

A license issued under this chapter must be renewed annually on a date designated by the board. The board shall renew a license upon payment of the renewal fee, submission of a renewal application in a form approved by the board, and submission of evidence satisfactory to the board of the applicant’s current certification by the ABGC or ABMG.

Source:

S.L. 2013, ch. 336, § 1.

43-60-06. Board duties.

The board shall adopt rules pertaining to fees, licensure, investigations, and disciplinary proceedings.

Source:

S.L. 2013, ch. 336, § 1.

43-60-07. Disciplinary actions.

  1. The board may cancel, revoke, suspend, or restrict the license of a genetic counselor; may issue public reprimands; and may issue fines, not to exceed one thousand dollars, if the board is satisfied by proof by a preponderance of the evidence, in compliance with chapter 43-17, of any of the following grounds for disciplinary action:
    1. The use of any false, fraudulent, or forged statement or document or the use of any fraudulent, deceitful, dishonest, or immoral practice in connection with any of the licensing requirements.
    2. The making of false or misleading statements by a genetic counselor about the counselor’s skill.
    3. The conviction of any misdemeanor determined by the board to have a direct bearing upon the genetic counselor’s ability to serve the public as a practitioner of genetic counseling.
    4. The conviction of a felony, if the requirements of section 12.1-33-02.1 are met.
    5. Habitual use of alcohol or drugs.
    6. Physical or mental disability materially affecting the ability to perform the duties of a genetic counselor in a competent manner.
    7. The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
    8. Obtaining any fee by fraud, deceit, or misrepresentation.
    9. Aiding or abetting the practice of genetic counseling by an unlicensed, incompetent, or impaired person.
    10. The violation of any provision of this chapter or the rules adopted by the board or the violation of any action, stipulation, condition, or agreement imposed by the board or the board’s investigative panels.
    11. The practice of genetic counseling under a false or assumed name.
    12. The advertising for the practice of genetic counseling in an untrue or deceptive manner.
    13. The willful or negligent violation of the confidentiality between genetic counselor and patient, except as required by law.
    14. Gross negligence in the practice of genetic counseling.
    15. Sexual abuse, misconduct, or exploitation related to the genetic counselor’s practice of genetic counseling.
    16. The use of any false, fraudulent, or deceptive statement in any document connected with the practice of genetic counseling.
    17. The imposition by another state or jurisdiction of disciplinary action against a license or other authorization to practice genetic counseling based upon acts or conduct by the genetic counselor which would constitute grounds for disciplinary action as set forth in this section. A certified copy of the record of the action taken by the other state or jurisdiction is conclusive evidence of that action.
    18. The failure to furnish the board or the board’s investigative panel or the board’s or investigative panel’s investigators or representatives information legally requested by the board or the investigative panel.
  2. The board shall keep a record of all the board’s proceedings in the matter of suspending, revoking, or refusing licenses together with the evidence offered.
  3. The board shall deposit in the general fund any fines collected under this section.

Source:

S.L. 2013, ch. 336, § 1.

43-60-08. Reinstatement and renewal.

Upon application, the board may reinstate or renew a license of an applicant whose license has been canceled, suspended, or revoked. The board may establish the protocol for reinstatement and renewal under this section and may impose conditions for reinstatement and renewal.

Source:

S.L. 2013, ch. 336, § 1.

43-60-09. Genetic counselor advisory committee.

  1. The board shall appoint a genetic counselor advisory committee composed of at least one genetic counselor and at least two physicians licensed under chapter 43-17. Except for initial appointments, each committee member shall serve a term of three years. The term of initial appointees must be staggered so that expiration of terms is evenly distributed. A committee member may not be appointed to more than three consecutive full terms. If a vacancy occurs, the board shall appoint an individual to fill the unexpired term.
  2. The advisory committee shall meet as necessary to conduct business, but at least annually. The advisory committee shall make recommendations to the board regarding board rules adopted under this chapter.

Source:

S.L. 2013, ch. 336, § 1.

43-60-10. Penalty.

It is a class B misdemeanor to knowingly violate this chapter.

Source:

S.L. 2013, ch. 336, § 1.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-61 Acupuncturists

43-61-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Acupuncture” means an East Asian system of health care that maintains and restores the health of patients through treatments that include patient education, botanical medicine, qi gong, tai qi, or the stimulation of a certain point or points on or below the surface of the body, including traditional meridian points and ashi trigger points by the insertion of presterilized, filiform, disposable needles with or without electronic stimulation or by utilizing manual or thermal techniques.
  2. “Acupuncturist” means an individual licensed to practice acupuncture under this chapter.
  3. “Approved acupuncture program” means a board-approved graduate level educational program that is offered by an institution of higher education and accredited by a national or regional agency recognized by the United States department of education, or another such equivalent program approved by the board which:
    1. Is accredited, has the status of candidate for accreditation, or meets the standards of an organization approved by the board, such as the accreditation commission of acupuncture and oriental medicine.
    2. Has been approved by the board after an investigation that determines that the college or program meets education standards equivalent to those established by the accrediting agency under subdivision a and complies with the board’s rules.
  4. “Board” means the state board of integrative health care created under chapter 43-57.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-02. Exemptions.

Some of the therapies used by an acupuncturist, such as the use of botanical medicine, foods, and such physical forces as needling and touch are not the exclusive privilege of acupuncturists. This chapter does not restrict or apply to the scope of practice of any other profession licensed, certified, or registered under the laws of this state.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-03. License required — Title restrictions.

  1. Effective January 1, 2016, an individual may not practice any form of acupuncture without a current acupuncture license issued by the board.
  2. An acupuncturist may use the title “Licensed Acupuncturist” and the abbreviation “LAc” when used to reflect that title. Effective January 1, 2016, an individual who uses these terms or initials as identification without having received an acupuncture license under this chapter is engaging in the practice of acupuncture without a license.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-04. Qualifications for licensure.

To obtain a license to practice acupuncture in this state, an application must be made to the board. The application must be upon the form adopted by the board and must be made in the manner prescribed by the board.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-05. Application for licensure.

  1. An applicant for acupuncture licensure shall file an application on forms provided by the board showing to the board’s satisfaction that the applicant is of good moral character and satisfied all of the requirements of this chapter and chapter 43-57, including:
    1. Successful completion of an approved acupuncture program;
    2. Successful completion of an examination prescribed or endorsed by the board, such as the national certification commission for acupuncture and oriental medicine;
    3. Physical, mental, and professional capability for the practice of acupuncture in a manner acceptable to the board; and
    4. A history free of any finding by the board, any other state licensure board, or any court of competent jurisdiction of the commission of any act that would constitute grounds for disciplinary action under this chapter and chapter 43-57. The board may modify this restriction for cause.
  2. The application must be accompanied by the board-established license fees and application fees and by the documents, affidavits, and certificates necessary to establish that the applicant possesses the necessary qualifications.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-06. Initial applications — Education testing exception.

Notwithstanding the education and examination requirements for licensure under subdivisions a and b of subsection 1 of section 43-61-05, if an applicant was a bona fide resident of the state from January 1, 2015, through December 31, 2015, was practicing acupuncture in this state immediately preceding January 1, 2016, was required to apply for licensure under this chapter in order to continue that practice, and does not meet the educational or examination requirements or both, the board may issue a license or limited license to that applicant if, following an examination of the applicant’s education and experience, the board determines the applicant has sufficient education and experience to prepare the applicant to practice acupuncture.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-07. Licensure granted without examination to individuals licensed in other states.

  1. The board may issue an acupuncture license by endorsement to an applicant who complies with licensure requirements and who passed an examination given by a recognized certifying agency approved by the licensing agency if the board determines the examination was equivalent in every respect to the examination required under this chapter.
  2. The board may enter reciprocal agreements with licensing agencies of other states providing for reciprocal waiver of further examination or any part of the examination.
  3. If an applicant is exempt from the examination required under this chapter, the applicant shall comply with the other requirements for licensure. The board may adopt rules allowing for temporary and special licensure to be in effect during the interval between board meetings.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-08. Practice of acupuncture.

  1. An acupuncturist may practice acupuncture as a limited practice of the healing arts as exempted under section 43-17-02. An acupuncturist may not:
    1. Prescribe, dispense, or administer any prescription drug; or
    2. Claim to practice any licensed health care profession or system of treatment other than acupuncture unless holding a separate license in that profession.
  2. An acupuncturist may prescribe and administer for preventive and therapeutic purposes the following therapeutic substances and methods:
    1. Patient education, botanical medicine, qi gong, and tai qi; and
    2. The stimulation of a certain point or points on or below the surface of the body, including traditional meridian points and ashi trigger points by the insertion of presterilized, filiform, or disposable needles with or without electronic stimulation or by utilizing manual or thermal techniques.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-09. Public health duties.

An acupuncturist has the same duties as a licensed physician with regard to public health laws, reportable diseases and conditions, communicable disease control and prevention, and local boards of health, except that the authority and responsibility are limited to activities consistent with the scope of practice established under this chapter and chapter 43-57.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

43-61-10. Employment by hospitals.

A hospital may employ an acupuncturist in the same manner as provided under section 43-17-42.

History. S.L. 2015, ch. 308, § 8, effective July 1, 2015.

CHAPTER 43-62 Medical Imaging and Radiation Therapy

43-62-01. Definitions.

As used in this chapter:

  1. “Board” means the North Dakota medical imaging and radiation therapy board.
  2. “Certification organization” means a national certification organization that specializes in the certification and registration of medical imaging and radiation therapy technical personnel and which has programs accredited by the national commission for certifying agencies, American national standards institute or the international organization for standardization, or other accreditation organization recognized by the board.
  3. “Licensed practitioner” means a licensed physician, advanced practice registered nurse, chiropractor, dentist, or podiatrist.
  4. “Licensee” means an individual licensed by the board to perform medical imaging or radiation therapy and operate medical imaging or radiation therapy equipment, including a nuclear medicine technologist, radiation therapist, radiographer, radiologist assistant, limited x-ray machine operator, sonographer, or magnetic resonance imaging technologist.
  5. “Medical imaging” means the performance of any diagnostic or interventional procedure or operation of medical imaging equipment intended for use in the diagnosis or visualization of disease or other medical conditions in human beings, including magnetic resonance imaging, fluoroscopy, nuclear medicine, sonography, or x-rays.
  6. “Medical physicist” means an individual who is certified by the American board of radiology, American board of medical physics, American board of science in nuclear medicine, or Canadian college of physics in medicine in radiological physics or one of the subspecialties of radiological physics.
  7. “Primary modality” means an individual practicing as a nuclear medicine technologist, radiation therapist, radiographer, radiologist assistant, sonographer, or magnetic resonance imaging technologist.
  8. “Protected health information” has the same meaning as provided under section 23-01.3-01.
  9. “Radiation therapy” means the performance of any procedure or operation of radiation therapy equipment intended for use in the treatment of disease or other medical conditions in human beings.
  10. “Radiation therapist” means an individual, other than a licensed practitioner or authorized user, who performs procedures and applies ionizing radiation emitted from x-ray machines, particle accelerators, or sealed radioactive sources to human beings for therapeutic purposes.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 1, effective March 16, 2017; 2017, ch. 199, § 51; 2019, ch. 54, § 7, effective August 1, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Section 43-62-01 was amended 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 51 of Chapter 199, Session Laws 2017, Senate Bill 2327; and Section 1 of Chapter 295, Session Laws 2017, Senate Bill 2198.

43-62-02. License required.

An individual may not perform or offer to perform medical imaging or radiation therapy on humans for diagnostic or therapeutic purposes or otherwise indicate or imply that the individual is licensed to perform medical imaging or radiation therapy unless that individual is licensed under this chapter.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 2, effective March 16, 2017.

43-62-03. Exemptions.

This chapter does not apply to the following:

  1. A licensed practitioner performing medical imaging or radiation therapy.
  2. A dental assistant or dental hygienist licensed under chapter 43-20.
  3. A student enrolled in and attending a school or college of medicine, medical imaging, or radiation therapy who performs medical imaging or radiation therapy on humans while under the supervision of a licensed practitioner or a radiographer, radiation therapist, nuclear medicine technologist, radiologist assistant, sonographer, or magnetic resonance imaging technologist holding a license in the medical imaging or radiation therapy modality which the student is enrolled or attending.
  4. An individual administering medical imaging or radiation therapy and who is employed by the United States government when performing duties associated with that employment.
  5. A nurse licensed under chapter 43-12.1 who performs sonography on a focused imaging target to assess specific and limited information about a patient’s immediate medical condition or to provide real-time visual guidance for another procedure.
  6. Medical imaging performed as a part of a post-mortem examination or on other nonliving remains.
  7. Medical imaging performed by emergency medical services personnel certified or licensed under section 23-27-04.3.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 3, effective March 16, 2017; 2017, ch. 199, § 52.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Section 43-62-03 was amended 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 52 of Chapter 199, Session Laws 2017, Senate Bill 2327; and Section 3 of Chapter 295, Session Laws 2017, Senate Bill 2198.

43-62-04. North Dakota medical imaging and radiation therapy board.

  1. The governor shall appoint a North Dakota medical imaging and radiation therapy board consisting of nine members including:
    1. Five medical imaging or radiation therapy professionals chosen to represent the areas of radiography, radiation therapy, nuclear medicine technology, sonography, magnetic resonance imaging, and medical imaging or radiation therapy education;
    2. One radiologist;
    3. One medical physicist;
    4. One physician from a rural area; and
    5. One public member.
  2. Each medical imaging or radiation therapy member of the board must:
    1. Be a practicing medical imaging or radiation therapy licensee of integrity and ability.
    2. Be a resident of and currently licensed pursuant to subsection 2 of section 43-62-14 in the member’s primary modality in this state.
    3. Be currently certified by a certification organization in the member’s primary modality.
    4. Have been engaged in the active practice of the medical imaging or radiation therapy profession within this state for a period of at least five years.
  3. Each public member of the board must:
    1. Be a resident of this state.
    2. Be at least twenty-one years of age.
    3. Not be affiliated with any group or profession that provides or regulates health care.
  4. The radiologist, medical physicist, and physician members of the board must:
    1. Be a practicing radiologist, medical physicist, or physician of integrity and ability.
    2. Be a resident of and be licensed to practice as a physician or registered as a medical physicist in this state.
  5. An individual appointed to the board shall qualify by taking the oath required of civil officers.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 4, effective March 16, 2017.

43-62-05. Term of office.

The term of office of each member of the board is four years and until a successor is appointed and qualified. The terms must be so arranged that no more than four terms expire on the thirty-first of July of each year. The governor shall fill all vacancies by appointment. In case of a vacancy before the expiration of a term, the appointment must be for the residue of the term. A member of the board may not serve on the board for more than two successive four-year terms.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-06. Removal of members of the board.

The governor for good cause shown and upon the recommendation of three-fourths of the members of the board may remove any member of the board for misconduct, incapacity, or neglect of duty.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-07. Officers of the board.

The board shall elect a president and vice president from its members and a secretary-treasurer. The secretary-treasurer need not be a member of the board. The secretary-treasurer must be the general administrative and prosecuting officer of the board.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-08. Meetings of the board.

The board shall hold at least two meetings each year to conduct business and to review the standards and rules for improving the administration of medical imaging or radiation therapy. The board shall establish the procedures for calling, holding, and conducting regular and special meetings. A majority of board members constitutes a quorum.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 5, effective March 16, 2017.

43-62-09. Powers of the board.

In addition to any other powers, the board may:

  1. Administer this chapter.
  2. Issue interpretations of this chapter.
  3. Adopt rules as may be necessary to carry out this chapter.
  4. Employ and fix the compensation of personnel the board determines necessary to carry into effect this chapter and incur other expenses necessary to effectuate this chapter.
  5. Issue, renew, deny, suspend, or revoke licenses and carry out any disciplinary actions authorized by this chapter.
  6. Set fees for licensure, license renewal, and other services deemed necessary to carry out the purposes of this chapter.
  7. Conduct investigations for the purpose of determining whether violations of this chapter or grounds for disciplining licensees exist. The board may establish an investigative panel to conduct an investigation under this subsection and may subpoena records.
  8. Develop standards and adopt rules for the improvement of the administration of medical imaging or radiation therapy in this state.
  9. Employ or contract with one or more certification organizations known to provide acceptable examinations leading to certification of technical personnel performing medical imaging or radiation therapy.
  10. Impose sanctions, deny licensure, levy fines, or seek appropriate civil or criminal penalties against anyone who violates or attempts to violate examination security, anyone who obtains or attempts to obtain licensure by fraud or deception, or anyone who knowingly assists in that type of activity.
  11. Require information on an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, licensing and disciplinary authorities of other jurisdictions, certification organizations, professional education and training institutions, liability insurers, health care institutions, or other employers, and law enforcement agencies be reported to the board. The board or its investigative panels may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with the criminal history record check are the responsibility of the licensee or applicant.
  12. Require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  13. Establish a mechanism for dealing with a licensee who abuses or is dependent upon or addicted to alcohol or other addictive chemical substances, and enter an agreement with a professional organization possessing relevant procedures and techniques the board has evaluated and approved for the organization’s cooperation or participation.
  14. Issue a cease and desist order, obtain a court order, or an injunction to halt unlicensed practice, a violation of this chapter, or a violation of the rules of the board.
  15. Issue a conditional, restricted, or otherwise circumscribed license as the board determines necessary.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 6, effective March 16, 2017.

43-62-10. Conflict of interest.

A member of the board may not participate in the making of any decision or the taking of any action by the board or a board committee which affects the member’s personal, professional, or pecuniary interest, or that of a known relative or business or professional associate.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-11. Records of the board.

The board shall keep a record of its proceedings and applications for licensure. An application record must be preserved for at least six years beyond the disposition of the application or the last annual registration of the licensee, whichever is later. Protected health information in the possession of the board is an exempt record.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 7, effective March 16, 2017.

43-62-12. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-13. Compensation — Expenses of board.

A member of the board is entitled to receive for each day during which the member actually is engaged in the performance of the duties of the member’s office per diem as determined by the board and mileage as provided in section 54-06-09. The secretary of the board is entitled to receive salary or other compensation and allowance for clerical and other expenses of the board as the board determines.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-14. License requirements.

  1. The board shall issue a license to a qualified applicant. To qualify for licensure, an applicant shall comply with the modality licensure requirements under subsection 2, 3, 4, or 7, comply with board requirements adopted by rules, and submit satisfactory evidence, verified by oath or affirmation, that the applicant:
    1. At the time of the application is at least eighteen years of age.
    2. Has successfully completed a four-year course of study in a high school or passed an approved equivalency test.
  2. To qualify for licensure to practice one or more of the primary modalities as a nuclear medicine technologist, radiation therapist, radiographer, radiologist assistant, sonographer, or magnetic resonance imaging technologist, an applicant shall meet the requirements for the applicable specific modality, including:
    1. Provide satisfactory completion of a course of study appropriate for the specified modality. The curriculum for each course of study may not be less stringent than the standards approved by the joint review committee on education in radiologic technology, joint review committee on nuclear medicine technology, commission on accreditation of allied health education programs, or any other appropriate accreditation agency approved by the board, provided the standards are not in conflict with board policy.
    2. Pass a certification examination established or approved by the board given by a certification organization recognized by the board.
    3. Show evidence of compliance with continuing education or recertification requirements required for registration of certification by a certification organization recognized by the board.
  3. A licensee under subsection 2 may not practice a primary modality without meeting the requirements for each specific primary modality being practiced. However, a licensee under subsection 2 may practice other modalities recognized by rule upon meeting the continuing education requirements for each modality practiced by the licensee.
  4. An applicant who is not licensed for a primary modality under subsection 2 may qualify for licensure to practice a modality recognized by the board, other than the primary modalities, by complying with certification or registration requirements established by the board by rule. The scope of a license issued under this subsection limits the licensee to the practice of the specific modality for which the applicant meets the requirement. However, a license issued under this subsection may be issued in conjunction with a license for additional modalities issued under subsection 7.
  5. The board may establish by rule specific changes or exceptions for those modalities in which the accreditation agency or certification organization differs in certification or registration requirements from this chapter.
  6. The board may grant a license to an applicant who submits the necessary application and fees who has been licensed, certified, or registered to perform or administer medical imaging or radiation therapy in another jurisdiction if that jurisdiction’s standards of licensure are substantially equivalent to those provided in this chapter in accordance with rules adopted by the board.
  7. The board may establish unique individualized licensing and practice standards and requirements for an applicant who does not meet the licensure requirements to receive a license in at least one primary modality of medical imaging or radiation therapy under subsection 2, or who meets the licensure requirements for one primary modality but not for another primary modality the applicant desires to practice.
    1. The board may grant a license limited to one or more modalities practiced by an applicant for three or more of the five years preceding January 1, 2017. The board may establish standards and requirements for the licensee designed to maintain reasonable access to public services and to promote public safety, including continuing education. A license granted for a specified modality under this subdivision expires and may not be renewed if the licensee attains a license in that modality under subsection 2 or 4.
    2. The board may grant a license to an applicant who began practice after December 31, 2016, for a specified modality or modalities if the applicant passes a board-approved examination and maintains specified continuing education requirements for each modality. The board may grant a conditional license allowing an applicant under this subdivision to practice before passing the examination.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 8, effective March 16, 2017.

43-62-14.1. Fluoroscopy technologist.

  1. Effective August 1, 2019, an individual licensed or permitted as a fluoroscopy technologist by the North Dakota board of medicine who is in good standing on that date, automatically becomes licensed as a fluoroscopy technologist by the North Dakota medical imaging and radiation therapy board.
    1. Effective August 1, 2019, the North Dakota board of medicine shall expire every active fluoroscopy technologist’s license issued by that board.
    2. Effective August 1, 2019, the North Dakota medical imaging and radiation therapy board shall issue a fluoroscopy technologist license to every individual qualified under this subsection to be automatically licensed.
  2. The scope of practice of a licensed fluoroscopy technologist is limited to gastrointestinal fluoroscopy of the esophagus, stomach, and small and large intestines.
  3. Fluoroscopy services provided by a licensed fluoroscopy technologist must be provided under the supervision of a primary supervising physician.
  4. If a fluoroscopy technologist performs a fluoroscopy procedure outside the presence of the technologist’s primary supervising physician, the technologist must be supervised by an onsite supervising physician who is immediately available to the technologist for consultation and supervision at all times the technologist is performing a fluoroscopy procedure.
  5. Under this section, a supervising physician may not designate the fluoroscopy technologist to take over the physician’s duties or cover the physician’s practice. During an absence or temporary disability of a primary supervising physician, the fluoroscopy technologist is responsible to the substitute primary supervising physician.
  6. To qualify for biennial license renewal, a fluoroscopy technologist shall submit to the board with radiography license renewal:
    1. Evidence of completion of at least six hours of continuing education on fluoroscopy safety and relevant radiation protection; and
    2. A copy of an agreement with a primary supervising physician.
  7. A licensee under this section is subject to the disciplinary authority of the board under section 43-62-19.

Source:

S.L. 2019, ch. 354, § 10, effective August 1, 2019.

43-62-15. Scope of practice.

  1. A license issued by the board under this chapter must specify each medical imaging or radiation therapy modality for which the licensee is qualified to practice under section 43-62-14.
  2. The board shall adopt by rule standards concerning scope of practice for medical imaging and radiation therapy modalities, including:
    1. Nuclear medicine technologist;
    2. Radiation therapist;
    3. Radiographer;
    4. Radiologist assistant;
    5. Sonographer;
    6. Magnetic resonance imaging technologist; and
    7. Limited x-ray machine operator.
  3. A licensee’s performance of medical imaging or radiation therapy on humans for diagnostic or therapeutic purposes must be by written, facsimile, electronic, or verbal prescription of an individual authorized by this state to prescribe medical imaging or radiation therapy and must be under the supervision of a licensed practitioner.
  4. A licensee’s performance of medical imaging and radiation therapy on humans for diagnostic or therapeutic purposes is limited to the scope of the medical imaging and radiation therapy modality of that license as specified under the rules adopted by the board.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 9, effective March 16, 2017; 2017, ch. 199, § 53, effective April 29, 2019; 2019, ch. 54, § 8, effective August 1, 2019.

Note.

This section is effective upon the receipt by the legislative council of the certification by the chief of the environmental health section of the state department of health attesting that all necessary federal approvals have been obtained and all necessary federal and other agreements have been amended to ensure the state will continue to meet the primacy requirements it currently satisfies after the transfer of authority, powers, and duties from the state department of health to the department of environmental quality provided under S.L. 2017, ch. 199, § 75. [Contingency met in 2019]

This section is set out above to reflect that the contingency of the section has been met.

Section 43-62-15 was amended 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 53 of Chapter 199, Session Laws 2017, Senate Bill 2327; and Section 9 of Chapter 295, Session Laws 2017, Senate Bill 2198.

43-62-16. Fees.

  1. The board shall set all fees by rules adopted under this chapter. All fees payable to the board must be deposited in the name of the board in financial institutions designated by the board as official depositories and must be used to pay all expenses incurred in carrying out the purposes of this chapter.
  2. The board may issue a temporary license to an individual whose licensure or license renewal may be pending or if issuance is for the purpose of providing medical imaging or radiation therapy services to medically underserved areas as determined by the board. A temporary license may be issued only if the board finds it will not violate the purpose of this chapter or endanger the public health and safety. A temporary license expires when the determination is made either to issue or deny the applicant a regular license. A temporary license may not be issued for a period longer than one hundred eighty days.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-17. Renewal.

  1. A license issued under this chapter must be renewed before January second every two years. The license must be renewed upon the payment of a renewal fee if the licensee is not in violation of this chapter and has complied with any continuing education requirements adopted by rule of the board.
  2. The board shall notify a licensee at least thirty days in advance of the expiration of the licensee’s license. The licensee shall inform the board of any change of the licensee’s address. Each licensee is responsible for renewing the licensee’s license before the expiration date. A license that is not renewed automatically lapses.
  3. The board may provide for the late renewal of an automatically lapsed license upon the payment of a reinstatement fee.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-18. Disciplinary action.

The board may take disciplinary action against a licensee by any of the following means:

  1. Revocation of license.
  2. Suspension of license.
  3. Probation.
  4. Imposition of stipulations, limitations, or conditions relating to the performance of medical imaging or radiation therapy.
  5. Letter of censure.
  6. Imposition of a penalty, not to exceed one thousand dollars for any single disciplinary action, which must be deposited in the state general fund.
  7. Payment of the board’s expenses, including legal fees, which may be deposited in the board’s operating fund.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 10, effective March 16, 2017.

43-62-19. Grounds for disciplinary action.

Disciplinary action may be imposed against a licensee upon any of the following grounds:

  1. The use of any false, fraudulent, or forged statement or document, or the use of any fraudulent, deceitful, dishonest, or immoral practice, in connection with any of the licensing requirements.
  2. The conviction of any misdemeanor determined by the board to have a direct bearing upon an individual’s ability to serve the public as a licensee or of any felony. A license may not be withheld contrary to chapter 12.1-33.
  3. Habitual use of alcohol or drugs.
  4. Physical or mental disability materially affecting the ability to perform the duties of a medical imaging or radiation therapy professional in a competent manner.
  5. The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
  6. Aiding or abetting the performance of medical imaging or radiation therapy by an unlicensed, incompetent, or impaired individual.
  7. The violation of any provision of this chapter, any rule of the board, or any federal or state law applicable to the practice of medical imaging or radiation therapy, or any action, stipulation, limitation, condition, or agreement imposed by the board or its investigative panels.
  8. The performance of medical imaging or radiation therapy under a false or assumed name.
  9. The willful or negligent violation of the confidentiality between medical imaging or radiation therapy professional and patient, except as required by law.
  10. Gross negligence in the performance of medical imaging or radiation therapy.
  11. Sexual abuse, misconduct, or exploitation related to the licensee’s performance of medical imaging or radiation therapy.
  12. The use of any false, fraudulent, or deceptive statement in any document connected with the performance of medical imaging or radiation therapy.
  13. The failure to maintain in good standing, including completion of continuing education or recertification requirements, a certification from a certification organization recognized by the board for the medical imaging or radiation therapy modality for which a license has been issued by the board.
  14. The imposition by another state, jurisdiction, or certification organization recognized by the board of disciplinary action against a license, certification, or other authorization to perform medical imaging or radiation therapy based upon acts or conduct by the medical imaging or radiation therapy professional which would constitute grounds for disciplinary action under this section. A certified copy of the record of the action taken by the other state, jurisdiction, or certification organization is conclusive evidence of that action.
  15. The failure to furnish the board or the investigative panel or investigators or representatives of the board or investigative panel information legally requested by the board or the investigative panel. The board shall keep a record of its proceedings in a disciplinary action or refusal to issue a license, together with the evidence offered.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015; 2017, ch. 295, § 11, effective March 16, 2017.

43-62-20. Costs of prosecution — Disciplinary proceedings.

In any order or decision issued by the board in resolution of a disciplinary proceeding in which disciplinary action is imposed against a medical imaging or radiation therapy professional, the board may direct any medical imaging or radiation therapy professional to pay the board a sum not to exceed the reasonable and actual costs, including reasonable attorney’s fees, incurred by the board and its investigative panels in the investigation and prosecution of the case. When applicable, the medical imaging or radiation therapy professional’s license may be suspended until the costs are paid to the board. A medical imaging or radiation therapy professional may challenge the reasonableness of any cost item in a hearing under chapter 28-32 before an administrative law judge. The administrative law judge may approve, deny, or modify any cost item, and the determination of the judge is final. The hearing must occur before the medical imaging or radiation therapy professional’s license may be suspended for nonpayment.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

43-62-21. Practicing without a license — Violation of chapter — Penalty.

An individual who performs medical imaging or radiation therapy in this state without complying with this chapter, and any individual who violates any provision of this chapter for which another penalty is not specified is guilty of a class B misdemeanor. In addition to the criminal penalties provided, the civil remedy of injunction is available to restrain and enjoin violations of any provision of this chapter without proof of actual damages sustained by any person.

History. S.L. 2015, ch. 309, § 3, effective August 1, 2015.

CHAPTER 43-64 Behavior Analysts

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.

43-64-01. Definitions.

For purposes of this chapter, unless the context otherwise requires:

  1. “Board” means the state board of integrative health care created under chapter 43-57.
  2. “Licensed assistant behavior analyst” means an individual who is licensed under this chapter as a licensed assistant behavior analyst and is supervised by a licensed behavior analyst.
  3. “Licensed behavior analyst” means an individual licensed under this chapter as a licensed behavior analyst.
  4. “Practice of applied behavior analysis” means the design, implementation, and evaluation of instructional and environmental modifications to produce socially significant improvements in human behavior. The term includes the empirical identification of functional relations between behavior and environmental factors. The term does not include the diagnosis of disorders, psychological testing, psychotherapy, cognitive therapy, psychoanalysis, and counseling.

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.

43-64-02. License required — Title restrictions.

  1. Effective January 1, 2020, an individual may not practice applied behavior analysis without a current license issued by the board under this chapter.
  2. A licensed behavior analyst may use the title “licensed behavior analyst.” A licensed assistant behavior analyst may use the title “licensed assistant behavior analyst.” Effective January 1, 2020, an individual who uses these terms as identification without having received a license as required under this chapter is engaging in the practice of applied behavior analysis without a license.

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.

43-64-03. Qualifications for licensure.

To obtain a license to practice applied behavior analysis in this state, an applicant shall submit an application to the board. The application must be upon the form adopted by the board and must be made in the manner prescribed by the board.

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.

43-64-04. Application for licensure.

  1. An applicant for licensure shall file an application on forms provided by the board showing to the board’s satisfaction the applicant is of good moral character and has satisfied the requirements of this chapter and chapter 43-57, including:
    1. Successful completion of education, examination, and experience requirements established by the board, such as certification from the behavior analyst certification board or a certifying entity accredited by the national commission for certifying entities or the American national standards institute;
    2. Physical, mental, and professional capability for the practice of applied behavior analysis in a manner acceptable to the board; and
    3. A history free of any finding by the board, any other state licensure board, or any court of competent jurisdiction of the commission of any act that would constitute grounds for disciplinary action under this chapter and chapter 43-57. The board may modify this restriction for cause.
  2. The application must be accompanied by the board-established license fees and application fees and by the documents, affidavits, and certificates necessary to establish the applicant possesses the necessary qualifications.
  3. The board shall establish standards for licensed behavior analysts supervising licensed assistant behavior analysts.

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.

43-64-05. Initial applications — Grandfather provision.

Notwithstanding the education, experience, and examination requirements for licensure under this chapter, if on December 31, 2019, an applicant held a valid license or registration issued by the state board of psychologist examiners under chapter 43-32, the applicant is deemed to have met the education, experience, and examination requirements for licensure.

Source:

S.L. 2019, ch. 364, § 22, effective July 1, 2019.