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
Author: Wendell R. Morgan
Statutory Authority: Code of Ala. 1975, §§ 20-2-54; 34-24-53; 41-22-1, et seq.
The following state regulations pages link to this page.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.