Ala. Admin. Code r. 540-X-6-.05 - Miscellaneous Provisions

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

(1) Record. The record in a contested case shall consist of all of those items enumerated in Code of Ala. 1975, § 41-22-12(f). A verbatim record of all proceedings before the Board shall be made either by stenographic notes or electronic recording or both. Any party requesting a transcription of the proceedings shall be required to reimburse the Board for the actual expense of the production of the transcript. The entire record of a contested case, including the record of oral proceedings, shall be maintained by the Board for a period of five (5) years from the date of the decision of the Board in accordance with the requirements of Code of Ala. 1975, § 41-22-12(g).

(2) Discovery. The Board may provide by order in a contested case that each party provide to the other parties a list of all witnesses to be called at the hearing and copies of all documents to be entered into evidence at the hearing. The Board may authorize the parties to submit the testimony of witnesses by deposition upon oral examination in the manner prescribed in the Alabama Rules of Civil Procedure. The Board may provide by order for such other limited discovery by the parties as is deemed necessary and prudent by the Board or the hearing officer to ensure that the hearing is fairly conducted under the law; provided, however, that no party to a hearing shall be entitled to discover the contents of any investigative files and records, including any investigative reports, statements, summaries, or other materials compiled and accumulated by investigators, attorneys or staff of the Board pursuant to its ordinary and usual investigative function unless the document is to be offered into evidence at the hearing.

(3) Subpoenas.

(a) Either party to a contested case may request that the Board issue subpoenas compelling the attendance of witnesses residing within the jurisdiction of the Board or the production of documents at the hearing. The expense of the subpoena, including mileage and per diem as specified by law, shall be borne by the party requesting the subpoena. The Board or the hearing officer may prescribe reasonable time limitations for the filing of requests for the subpoena of witnesses and documents and may further require the payment of the expenses for such subpoenas in advance.

(b) Upon the filing of a timely motion by any party, the Board may direct the issuance of a subpoena to require the attendance of a witness at a deposition upon oral examination or to produce documents for inspection provided that the witness resides within the jurisdiction of the Board to issue such subpoena and further provided that the party requesting the subpoena tender to the Board the required mileage and per diem rate. The party at whose request the deposition is held shall be responsible for all administrative costs of the deposition.

(c) In the exercise of the Board's power to subpoena witnesses and to compel the production of documents the Board will make a reasonably diligent effort to secure the attendance of any material witness and to produce any relevant documents which are necessary for the resolution of the issues raised in the contested case. The Board will not unreasonably extend or delay the proceedings in contested cases for discovery purposes. This section governing the issuance of subpoenas and production of documents shall not be interpreted to require that any member of the Board of Medical Examiners, or any investigator, attorney or employee of the Board of Medical Examiners, submit to a deposition upon oral examination or produce documents for inspection unless the individual is designated by the complainant to testify as a witness in the contested case. In all circumstances the deliberations of the Board of Medical Examiners, the contents of any investigative files and records of the Board, including any investigative reports, statements, summaries or other materials compiled and accumulated by its investigators, attorneys or staff of the Board pursuant to its ordinary and usual investigative function are confidential and privileged and are not subject to discovery proceedings under these rules.

(4) Emergency suspension or revocation. If the Board shall determine that there exists an immediate and clear danger to the public health or safety, the Board may immediately suspend any registration simultaneous with the institution of a revocation proceeding under the provision of Code of Ala. 1975, § 20-2-55, and these rules, with a hearing to be set not less than thirty (30) days after the effective date of the emergency suspension.

(5) Rules of evidence.

(a) The rules of evidence in contested cases shall be in accordance with § 41-22-13 of the Administrative Procedure Act. In arriving at a determination upon medical issues in contested cases the Board may consider the testimony of expert witnesses; however, the Board is authorized to exercise its independent medical judgment in the resolution of medical issues and is not required to receive expert testimony for the determination of medical issues. In any final order resulting from a contested case where the Board does not receive expert testimony, the Board shall set out as findings and conclusions the basis for the medical judgments and opinions relied upon by the Board in rendering the decision.

(b) Documentary evidence and testimony which is otherwise admissible in a contested case shall not be rendered inadmissible because of any claim of privilege between physician and patient. All testimony regarding the medical condition of individuals and all medical records produced during the course of the contested case shall be considered confidential and shall not be released to persons who are not parties or participants in the contested case.

(6) Informal disposition. Upon written consent of the parties, any contested case may be concluded and disposed of informally by stipulation, agreed settlement, consent order or as otherwise agreed. Informal disposition of contested cases is appropriate where there are no material issues of fact, there are no witnesses offering testimony other than general character and reputation testimony, and there are no contested documents that will be considered by the Board in arriving at its decision. In a revocation hearing the registrant or his attorney may consent to an informal disposition by executing a written consent and filing the same with the Board. In such event the registrant will be offered the opportunity, if he desires, to appear for an informal interview with the Board prior to the Board reaching a decision in the matter. The record of contested cases concluded by informal disposition will consist of the notice and/or complaint, stipulation and agreement, the consent of the registrant to informal disposition, the prior history of the registrant as reflected in the record of the Board, a transcript of any statement made by the registrant to the Board at the interview, and the final decision of the Board. A reinstatement hearing may be subject to informal deposition at the election of the Board, but, in all such cases the registrant shall be advised in the notice of hearing that a full hearing, with the appointment of a hearing officer, will be set by the Board if registrant requests such within 15 days of the service of the notice of hearing.

(7) Representation before the Board. A registrant in a contested case may represent himself or may be represented by an attorney. No other person, unless specifically permitted by statute or by these rules, will be permitted to represent a registrant as an advocate before a contested hearing conducted pursuant to these rules.

(8) Intervention. Intervention is permitted only to the extent provided by Code of Ala. 1975, § 41-22-14. An application for intervention must be submitted at least ten (10) days before any scheduled hearing.

(9) Computation of time. Time is computed for these rules in the same manner as is provided in Code of Ala. 1975, § 1-1-4.

(10) Application for rehearing. Applications for rehearing are not required but may be submitted in conformity with § 41-22-17 of the Administrative Procedure Act. If the Board enters no order on the application for rehearing within thirty (30) days from the date of filing, the application shall be deemed to have been denied as of the expiration of the thirty (30) day period.

(11) Appeals. Appeals from decisions of the Board of Medical Examiners in contested cases conducted pursuant to its authority as a certifying Board under the Uniform Controlled Substances Act are governed by § 20-2-53, Code of Ala. 1975 (2006), except that judicial review shall be commenced by the filing of a petition for review with the Alabama Court of Civil Appeals, in accordance with § 34-24-380, Code of Ala.1975, as amended by Act No. 2008-397.

Notes

Ala. Admin. Code r. 540-X-6-.05

Filed January 19, 1984 as Rule No. 540-X-6-.06. Rules reorganized--rule number changed to (see conversion table at end of code): Filed June 14, 1984 (without publication in AAM). Amended: Filed June 20, 1990. Amended: Filed October 15, 2008; effective November 19, 2008.

Author: Wendell R. Morgan

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