Ala. Admin. Code r. 540-X-6-.04 - Conduct Of Hearings In Contested Cases

Current through Register Vol. 40, No. 6, March 31, 2022

(1) When the Board of Medical Examiners determines that there exists sufficient evidence to believe that a registrant may have committed any of the offenses or conditions as set out in Code of Ala. 1975, § 20-2-54, then the Board may direct that a notice and complaint be filed with the Board and served upon the registrant. The notice and complaint shall conform to the requirements of Code of Ala. 1975, § 41-22-12(b), and shall set a date for a hearing before the Board not less than thirty (30) days after the date of service of the notice, or in the case of a renewal of registration, not later than thirty (30) days after the expiration of such registration. Notice may be served by personal service or by certified mail, return receipt requested, to the last known address of the registrant. If the registrant cannot be located at this last known address or if it appears that the registrant is seeking to avoid service of the notice, then the chairman of the Board may direct service of process in any other manner as permitted by law. When the Board has made a reasonably diligent inquiry and cannot establish a valid mailing address for the registrant, then notification to the Board by the U.S. Post Office of attempted service by certified mail, return receipt requested, to the last known mailing address of the registrant, shall authorize the Board to proceed in the absence of the registrant.
(2) In a revocation hearing the registrant shall file with the Board and shall serve upon each party to the contested case or their attorney an answer and response to the allegations set forth in the complaint. Any allegation of fact set forth in the complaint which is not disputed or denied, in whole or in part, by the registrant in his answer may be considered as true by the Board on the hearing of the contested case. In the answer to the complaint, the registrant should set out a brief, concise summary of those facts upon which he intends to rely in the contested case hearing; however, in no event shall the registrant be required to make any statement in contravention of the right against self-incrimination granted under the U.S. and Alabama Constitutions. The answer shall be filed with the Board not later than twenty (20) days after service of the notice of hearing. No answer is required by a registrant in a reinstatement hearing or in a revocation hearing in which the registrant has consented to informal disposition under Rule 540-X-6-.05(6).
(3) In all contested cases the registrant shall be entitled to personally appear before the Board, to be represented by counsel of his own choice at his own expense, to cross-examine witnesses offering testimony to the Board and to examine documents offered into evidence, to call witnesses on his own behalf, to compel the attendance of witnesses and the production of documents and other evidence by subpoena at his own expense and to present evidence and arguments on all material issues arising in the contested case.
(4) The Chairman of the Board shall preside during hearings with the assistance and advice of a hearing officer. A quorum of the Board necessary to hear and decide contested cases is set at six (6) members of the Board. The hearing shall be open to the public, provided, that the Chairman may direct that the testimony of minors or the testimony of a patient relating to his or her confidential medical history be taken in executive session and provided that the Chairman shall direct that any information deemed confidential by state or federal statutes be taken in executive session. The Chairman may place reasonable limitations upon the number of spectators in attendance consistent with the capacity of the hearing room. No filming or video taping of hearings will be permitted without the express permission of the Chairman. All evidence and argument shall be presented before the Board and no member of the Board shall participate in the final decision unless he has been present during all of the hearing or unless he has considered a complete record of those proceeding which took place in his absence. At the conclusion of the presentation of evidence, the public portion of the hearing will be closed and the Board will deliberate in executive session.
(5) The chairman shall be responsible for the conduct of the hearing and all rulings of the chairman on procedural matters and rulings of the hearing officer on legal matters shall be final and shall be deemed to be the action of the Board unless such rulings are challenged by a member of the Board. All challenges are to be considered and decided by the Board outside the presence of the parties, attorneys and witnesses to the contested case, and only the decision of the Board shall be entered into the record. The chairman may impose reasonable conditions and limitations on the parties' presentation during a contested case including, but not limited to, the prescribing of reasonable limitations on argument, requiring the parties to file briefs and memoranda with the Board, and the imposition of reasonable sanctions and penalties for misconduct of parties and attorneys before the Board. The chairman is specifically authorized to require that any person whose behavior is disruptive to the orderly conduct of the proceedings leave the hearing and may then order the proceedings to continue or to be postponed as circumstances shall dictate.
(6) During the conduct of any contested case the chairman shall permit the members of the Board to direct questions to witnesses offering testimony to the Board but shall ensure that such questions are material and relevant to the issues under inquiry.
(7) The hearing shall be conducted insofar as is practicable in the same manner as a civil action at law. In a revocation hearing the complainant shall have the obligation to proceed first and to present such evidence touching upon the specific allegations of the complaint as will establish at least a prima facie violation of the offenses and conditions as stated in the complaint. In reinstatement hearings the Board shall initially receive into evidence the notice of hearing and a record of all the prior transactions of the Board concerning the registrant and it shall then be the obligation of the registrant to proceed and to present evidence and argument to the Board establishing the right of the registrant to the relief requested. The registrant shall have the burden in a reinstatement hearing of establishing the reasonable satisfaction of the Board that the applicant is entitled to the registration certificate or other relief that is requested under the criteria outlined in Rule 540-X-6-.02(3) and that the public safety and welfare and the safety and welfare of the patients of the registrant would not thereby be jeopardized.
(8) At the conclusion of the hearing the Board shall conduct its deliberations and render its decision outside the presence of the parties. The Board may have the advice and counsel of the hearing officer during its deliberations. The final order of the Board shall be rendered in conformity with § 41-22-16 of the Administrative Procedure Act.
(9) Upon a finding by the Board that the registrant is guilty of any violation of the offenses and conditions as set forth in Code of Ala. 1975, § 20-2-54(a), the Board may, within its sole discretion, impose one of the following penalties:
(a) Revoke the registration certificate.
(b) Revoke the registration certificate, suspend the revocation, and place the registrant on probation for a specific stated period and impose such conditions or restrictions on the registration certificate as it shall deem necessary.
(c) Suspend the registration certificate for a specific stated period, at the expiration of which time the registration certificate will automatically be reinstated with such authorized schedules as the registrant had prior to the action of the Board.
(d) Restrict the registration certificate by deletion of such authorized schedules for particular classes of controlled substances as deemed appropriate by the Board according to the facts of the case. Unless otherwise specified in the order of the Board, a restricted registration certificate shall continue to be restricted until the Board removes the restrictions, subject to the right of the registrant to apply for reinstatement or to apply for an unrestricted certificate at a later date.

Notes

Ala. Admin. Code r. 540-X-6-.04
Filed January 19, 1984 as Rule No. 540-X-6-.05. Rules reorganized--rule number changed to (see conversion table at end of code): Filed June 14, 1984 (without publication in AAM). Amended: Filed July 21, 1995; effective August 25, 1995. Amended: Filed October 15, 2008; effective November 19, 2008. Amended by Alabama Administrative Monthly Volume XXXVII, Issue No. 09, June 28, 2019, eff. 8/3/2019.

Author: Wendell R. Morgan

Statutory Authority: Code of Ala. 1975, §§ 20-2-54; 34-24-53; 41-22-1, et seq.

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