067-00-93 Ark. Code R. § 5
This exposition of the Rules of Procedure formulated under the Administrative Procedure Act, as amended, ACA § 25-15-201 et seq, does not effect a repeal of the provisions of the nurse practice act, its amendments and related laws, except insofar as these Rules of Procedure were formulated under provisions of law which specifically contravenes provisions of the nurse practice act, its amendments and related laws.
Any such rule shall be made or amended only after a hearing upon notice as set forth in these Rules of Procedure.
PRIOR RULES-VALID
Rules of the Board formulated previously are declared to be still in force until amended and certified to the Arkansas Register.
In any case of rule-making, every person has a right to seek to cause the Board to act to make a rule. Every person also has the right to seek to cause an incorrect rule to be corrected.
Willful violation of any rule of the Board, in addition to any other penalty provided by law, shall subject the violator to such denial, suspension or revocation of approval of a nursing program or license to practice nursing as may be applicable.
Orders of the Board shall be effective only when in writing.
Each order shall contain its effective date and shall concisely state:
An order may be given by service upon or delivery to the person ordered by mail, postage prepaid, addressed to the person at his principal place of business or his home as last of record with the Board. An order may also be served by any officer authorized to serve legal process or by any member of the Board or any employee of the Board. An attempt to serve notice at the last address of record in the Board office shall constitute official notice.
There shall be an order formulated upon each adjudication made by the Board or its hearing officer.
Any person who alleges a rule, or its possible application, may injure or threaten to injure him, his business or property may file a petition for a declaratory order as to the applicability of any rule to be enforced by the Board.
Such petition shall be promptly considered and a prompt disposition shall be made.
Declaratory orders shall have the same status as agency orders formulated upon adjudication.
Applicability of statutes or department orders as to any person may be determined in the same manner by declaratory orders.
All parties shall be afforded opportunity for hearing after reasonable notice. (See Section XI, subsection B.3. infra.)
Opportunity shall be afforded all people interested in the action to respond and present evidence and argument on all issues involved.
Nothing in these rules shall prohibit informal disposition by stipulation, settlement, consent order or default.
The record shall include:
Findings of fact shall be based exclusively on the evidence received and on matters officially noticed.
In every case of adjudication there shall be a final decision, or order, which shall be in writing (or stated in the record).
Parties shall be served either personally or by mail with a copy of any decision or order.
Where a formal hearing before a hearing officer has been held at which the parties were given proper notice and at which opportunity was offered to them to be present in person and by counsel to present testimony, briefs, and argument, a proposal for decision will not be required.
Where convenient and appropriate, a hearing officer may be appointed to take testimony and prepare the record for the consideration of the Board. The hearing officer may conduct hearings at any place within the State of Arkansas. In the conduct of such hearings the hearing officer shall preside and have the power and duties of a presiding official as set forth in Section X.D. The decision on the record made by the hearing officer shall be made by a majority of the members of the Board.
In every case of adjudication, and in cases of rule making where rules are to be made after hearing, there shall be a hearing.
Any person compelled to appear before the Board or a hearing officer shall have the right to counsel.
Every member of the Board present shall conduct her/him self in an impartial manner and the presiding official may withdraw if she/he deems her/him self disqualified.
Any party may file an affidavit of personal bias or disqualification which shall be ruled upon by the Board and granted if it is timely, sufficient and filed in good faith.
The presiding officer of the hearing shall have power to:
The proponent of a rule or order shall have the burden of proof.
Irrelevant, immaterial and unduly repetitious evidence shall be excluded.
Any other evidence, oral or documentary, not privileged, may be received if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.
Objections to evidence may be made and shall be noted of record.
When a hearing can be so expedited (and the interests of the parties will not be prejudiced) any part of the evidence may be received in written form.
Parties shall have the right to conduct such cross-examination as may be required for a full, true disclosure of the facts.
Official notice may be taken of judicially cognizable facts and of generally recognized technical or scientific facts peculiarly within the Board's specialized knowledge.
The Board shall have sole authority over registered nurses, certified registered nurse anesthetists, certified nurse midwives, registered nurse practitioners, licensed practical nurses, and licensed psychiatric technician nurses to deny or suspend any license to practice nursing issued by the Board or applied for in accordance with the provisions of the Nurse Practice Act, or to otherwise discipline a licensee upon proof that the person:
Except as provided in Subsection 2 below, every licensee or applicant for a license shall be afforded notice and an opportunity to be heard before the Board. The Board shall have authority to take any action the effect of which would be to:
If the Board finds that the continued practice by a licensee of the occupation or profession for which he/she is licensed will create an immediate hazard to the public, the Board may suspend the license pending a hearing without prior notice of hearing.
In any proceeding of the Board involving the denial of a duly made application to take an examination, or refusal to issue a license after an applicant has taken and passed an examination, the burden of satisfying the Board of the applicant's qualifications shall be upon the applicant.
Any notice required by subsection B.3, above, may be served either personally or by an officer authorized by law to serve process, or by registered mail or certified mail, with return receipt requested, directed to the licensee or applicant at his or her last known address as shown by the records of the Board. If notice is served personally, it shall be deemed to have been served at the time when the officer delivers the notice to the person addressed. Where notice is served by registered mail, it shall be deemed to have been served on the date borne by the return receipt showing delivery of the notice to the addressee or refusal of the addressee to accept the notice. An attempt to serve notice at the last address of record shall constitute official notice.
Board hearings held under the provisions of this rule shall be conducted at the Board office or elsewhere in Pulaski County. The hearings may be held anywhere within Arkansas if the person whose license is involved and the Board agree that the hearing should be held at some place outside Pulaski County.
All hearings under this section shall be open to the public. At all such hearings at least a quorum of the Board shall be present to hear and determine the matter.
A person entitled to be heard pursuant to this section shall have the right to:
In connection with any hearing held pursuant to the provisions of this section, the Board or its hearing officer shall have power to:
In proceedings held pursuant to this rule, the Board may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs. The Board may in their discretion exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.
Witness fees and mileage, if claimed, shall be allowed the same as for testimony in a Circuit Court.
After a hearing has been completed, the members of the Board shall proceed to consider the case and as soon as practicable shall render their decision. If the hearing was conducted by a hearing officer, the decision shall be rendered by the Board at a meeting where a quorum of the members of the Board are present and participating in the decision. In any case the decision must be rendered within ninety (90) days after the hearing.
Within a reasonable time after the decision is rendered the Board shall serve upon the person whose license is involved a written copy of the decision, either personally or by registered mail. If the decision is sent by registered mail, it shall be deemed to have been served on the date borne on the return receipt.
If a person duly notified fails to appear for a disciplinary hearing and no continuance has been granted, the Board or its hearing officer may hear the evidence of such witnesses as may have appeared, and the Board may proceed to consider the matter and dispose of it on the basis of the evidence before it in the manner required by subsection L of Section XI.
Where because of accident, sickness, or other cause a person fails to appear for a hearing which has been scheduled by the Board, the person may, within a reasonable time, apply to the Board to reopen the proceeding, and the Board upon finding such cause sufficient shall immediately fix a time and place for hearing and give such person notice thereof as required by Sections XI.B.3. and XI.C. At the time and place fixed, a hearing shall be held in the same manner as would have been employed if the person had appeared in response to the original notice of hearing.
The decision of the Board shall contain:
Judicial review of proceedings under this rule shall be set out in Section XII.
The validity or applicability of a rule may be determined in an action of declaratory judgment, if it is alleged that the rule (or its threatened application) injures or threatens to injure the plaintiff.
An application for declaratory judgment may be brought in the circuit court of Pulaski County.
The Board shall be named defendant.
A declaratory judgment may be sought and rendered whether or not the plaintiff requested the Board to act upon the validity or applicability of the questioned rule.
Rule Making
If the Board shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act in respect to rule-making, any person may sue for an order commanding the Board to act.
Venue -Chancery Court
The suit may be brought in the chancery court of Pulaski County.
Any person who considers himself injured by a failure to act in a case of adjudication has the same judicial review as in a matter of failure to act pertaining to rule-making.
Venue -Chancery Court
The plaintiff may bring suit for an order commanding the Board to act. The suit shall be in the Pulaski Chancery Court.
In cases of adjudication, any person who considers himself injured in his person, business or property by final Board action shall be entitled to judicial review.
Nothing in this section shall be construed to limit other means of review provided by law.
Proceedings for review may be instituted by filing a petition in the circuit court of Pulaski County or in the circuit court of that county in which the hearing was held.
The petition shall be filed within thirty days after service of the Board's final decision of the adjudication upon petitioner.
Service shall be had by serving a copy of the petition upon the Board and all other parties of record either by personal service or by mail.
The court may permit other interested parties to intervene.
Filing of the petition shall not automatically stay enforcement of the Board decision. The Board, upon its own action, or the reviewing court, may stay the order upon such terms as may be just.
Response shall be made within thirty days after service of the petition, or within such time as the court may allow, but not exceeding a total of ninety (90) days.
The Board shall transmit the record to the reviewing court.
Additional evidence may be had if, before the date for hearing, application is made to the court for leave to present additional evidence.
The review shall be conducted by the court without jury and shall be confined to the record.
The reviewing court may affirm the decision of the Board, or it may remand the case for further proceedings. It also may reverse or modify the decision if substantive rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
In cases of disciplinary proceedings, any respondent shall be entitled to judicial review of the final Board action.
Proceedings for review may be instituted by filing a petition in the circuit court of Pulaski County or in the circuit court of the county in which the hearing was held.
The petition shall be filed within thirty days after service of the Board's final decision of the adjudication upon petitioner.
Service shall be had by serving a copy of the petition upon the president or the secretary of the Board.
Filing of the petition shall not automatically stay enforcement of the Board decision. The Board, upon its own action, or the reviewing court, may stay the decision or order upon such terms as may be just.
Response shall be made within thirty days after service of petition, or within such time as the court may allow, but not exceeding a total of ninety days.
The Board shall transmit the record to the reviewing court.
Additional evidence may be had if, before the date for hearing, application is made to the court for leave to present additional evidence.
The review shall be conducted by the court without a jury and shall be confined to the record.
In cases of alleged irregularities in procedure before the Board (not shown in the record) testimony may be taken before the court.
The reviewing court may affirm the decision of the Board, or it may remand the case for further proceedings. It also may reverse or modify the decision if substantive rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
Appeals to the Arkansas Supreme Court from any final action of a chancery or circuit court shall follow the procedure prescribed by law.
The Board may institute such (civil) suits or other legal proceedings as may be required for enforcement of any provisions of ACA §§ 17-86-101 through 1 7-86-507 (Nurse Practice Act), as amended, and related acts.
If the Board has reason to believe that any person has violated any provisions of the Nurse Practice Act, as amended, or related acts for which criminal prosecution would be in order, it shall so inform the prosecuting attorney in whose district any such purported violation may have occurred.
The term "gross negligence" is an exercise of such minimal care as to justify the belief that there was a conscious disregard or indifference for the health, safety, or welfare of the patient or the public and shall be considered a substantial departure from the accepted standard of care.
The term "other causes" shall include but not be limited to the inability to practice nursing because of physical and/or psychological impairment.
067.00.93 Ark. Code R. § 005