La. Admin. Code tit. 46 § XLIV-6101

Current through Register Vol. 50, No. 11, November 20, 2024

Section XLIV-6101 - Formal Disciplinary Hearings

A. Formal Disciplinary Hearings

1. The board shall also be authorized to conduct formal disciplinary hearings.

2. The hearing shall be held before the board only after the involved licensee and/or applicant is given at least 30 days notice by registered or certified mail. The content of the notice, as well as the conduct of the hearings, shall be governed by R.S. 49:955, being further provided that the licensee be advised of the right to be represented by legal counsel. The board shall arrange for a court reporter to make an accurate recording of all testimony presented at the hearing. Any person bringing a complaint waives the privilege of confidentiality for purposes of the hearing.

3. The rules of evidence, notice, authority to administer oaths, issue subpoenas, conduct depositions and control confidential or privileged information, will apply to the formal adjudication hearing in accordance with the Louisiana Administrative Procedure Act. Thereafter, the unsuccessful applicant or licensee may apply for a rehearing, as provided in R.S. 49:959, subject to further judicial review, pursuant to R.S. 49:964, 965.

4. It is the obligation of each licensed therapists or the holder of an establishment license to keep the board informed of current contact information. Accordingly, if notice of the hearing cannot be delivered by mail because of a change of address and the new address is not provided to the board, the board may hold the hearing without the therapists or establishment license holder being present, so long as reasonable efforts have been made to obtain the licensee's new address.

5. When the licensee receives notice of a complaint and/or the scheduling of a disciplinary hearing, he may file an answer to the notice responding to the charges, or offering any explanation or assert whatever defense is deemed applicable.

6. Upon timely request, the board has discretion to extend or continue the time set for the hearing for such reasons as:

a. ill health;

b. inability to obtain counsel;

c. the complexities of the case; or

d. other matters deemed by the board to constitute good cause.

7. The board attorney shall advise board members on proceedings during the hearing.

8. Any board member having reason to believe that he may be perceived to be biased or prejudiced against any of the parties to the proceeding or who has a personal or economic interest in the outcome of such proceedings shall immediately notify the remaining board members and request to be relieved of participation in the proceedings. Any party to such a hearing may file with the board an affidavit requesting the recusal of a board member because of bias or personal or financial interest. As soon as possible, but not later than the beginning of the hearing, the majority of the board must pass upon the request for disqualification. The concerned board member shall not vote in the action to disqualify. Any doubt concerning the fitness of a board member shall be resolved in favor of disqualification. In the event of disqualification, the board shall proceed without the disqualified member. The number of board members needed for a quorum and majority shall be reduced to compensate for the disqualified member(s).

9. The parties to the hearing are urged to confer prior to the hearing or through their respective counsel in an attempt to reduce or simplify the issues to be heard. The board will accept any joint stipulations between the parties as proven facts at the hearing. The purpose of the pre-hearing conference is to ensure that the hearing is not unduly prolonged by receiving testimony or other evidence on matters which are not seriously in dispute.

10. The board shall have discretion to consolidate one or more cases for hearing if the matters involve the same or related parties, or substantially the same questions of law or fact. The board may also grant separate hearings if such a joint hearing would be prejudicial to one or more of the parties. If hearings are to be consolidated, notice must be given to all parties in advance of the hearing.

11. The board shall consider a motion to modify or quash any subpoena issued in connection with the hearing or a deposition related to a hearing, provided that such motion is filed by registered mail with the board no later than three days prior to the hearing date or the date scheduled for the deposition. Grounds to quash or limit the subpoena include, but are not limited to:

a. testimony or material protected by privilege granted by statute, regulation, or other law;

b. burdensomeness that would not be justified in light of the evidence's importance to the case;

c. undue hardship on a witness;

d. vagueness; and

e. immateriality

12. The procedures to be followed in conducting the hearing, governing the order of proceeding, rulings on evidence, and the board's decision, are contained in the Louisiana Administrative Procedure Act.

13. The burden of proof rests upon the CIO who is presenting the charge before the board. No sanctions shall be imposed or order issued, except upon consideration of the whole record, as supported by and in accordance with, reliable, probative and substantial evidence. While proof beyond all reasonable doubt is not required to establish a given fact as true, the burden must be carried by a clear preponderance of the evidence. This standard of proof shall apply in all hearings conducted before the board and any review or examination of evidence or any hearing requested.

14. Any party or person deemed to be governed by or under the jurisdiction of R.S. 36:3501-36:3516, may apply to the board for a declaratory order or ruling in order to determine the applicability of a statutory provision or rule of this board to said party or person. The board shall issue the declaratory order or ruling in connection with the request by majority vote of the board, signed and mailed to the requesting party. The board may seek legal counsel or an attorney general's opinion in connection with any such request.

15. Judicial review and appeal of any decision or order of the board shall be governed by R.S. 49:964-965.

La. Admin. Code tit. 46, § XLIV-6101

Promulgated by the Department of Health and Hospitals, Board of Massage Therapy, LR 20:1002 (September 1994), repromulgated LR 20:1111 (October 1994), amended LR 32:1239 (July 2006), LR 39:1776 (July 2013).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:3551 et seq., R.S. 37:3555 et seq., R.S. 49:955, and R.S. 49:964-965.