La. Admin. Code tit. 46 § LIII-2711

Current through Register Vol. 50, No. 9, September 20, 2024

Section LIII-2711 - Actions on Licenses

A. The board may refuse to renew a CDS license, or may suspend or revoke an existing CDS license, if the licensee has violated, or been found guilty of violating, any federal or state laws or regulations relating to controlled substances.

B. Violations Committee

1. Informal Hearings. The violations committee of the board may conduct an informal non-adversarial hearing with a licensee properly noticed of the inquiry regarding the issues to be discussed. The committee shall receive information and deliberate as to a cause of action regarding a potential violation. By an affirmative majority vote of the committee members, they may recommend a course of action to the full board, or they may dismiss the allegations. Should the committee recommend a course of action to the full board, the committee members participating in that decision shall not be permitted to participate in subsequent formal administrative hearings pertaining to the complaint or alleged violation(s) heard by the committee, unless the licensee allows otherwise.

2. Interlocutory Hearings. By interlocutory, or summary, hearing, the committee may summarily suspend a CDS license prior to a formal administrative board hearing wherein, based upon the committee's judgment and reflected by adequate evidence and an affirmative majority decision, the licensee poses a danger to the public's health, safety, and welfare, and the danger requires emergency action.

a. Summons Notice. A summary proceeding summons notice shall be served at least five days before the scheduled hearing to afford the licensee an opportunity to be heard with respect to a potential summary suspension action. The notice shall contain a time, place, nature, and the grounds asserted relative to the alleged conduct warranting summary suspension.

b. Burden of Proof. Legal counsel shall have the burden of proof to support the contention the public's health, safety, or welfare is in danger and requires summary or emergency action.

c. Evidence. The licensee shall have the right to appear personally, to be represented by counsel, or both, to submit affidavits, documentary evidence, or testimony in response to the cause of action asserted as the basis for the summary suspension.

d. Decision. The committee shall determine whether to grant or deny the request for summary suspension based upon adequate evidence with an affirmative majority vote substantiated by findings(s) of fact and conclusion(s) of law the public's health, safety, or welfare is in danger and requires emergency or summary action.

e. Report. The committee shall submit their findings and interlocutory decree to the board when rendered.

f. Suspensive Duration. The summary suspension decree shall be followed by a formal administrative hearing within 30 days from receipt of notice by the licensee.

C. Consent Agreements. A licensee may enter into a consent agreement with the board on any matter pending before the board. A consent agreement is not final until the board approves the consent agreement by an affirmative majority vote of the board. If the consent agreement is rejected in full or part, the matter shall be heard at the next regularly scheduled formal administrative hearing. However, nothing herein shall be construed to limit the board from modifying a consent agreement, with the licensee's approval, to include less severe sanctions than those originally agreed to in a pending consent agreement.

D. Formal Administrative Hearing

1. Authority. The board shall convene a formal administrative hearing pertaining to the ability to hold a CDS license, in accordance with the Administrative Procedure Act, R.S. 49:950 et seq., with authority to take disciplinary action pursuant to R.S. 40:975.

2. Ex-Parte Communication. Once a formal administrative hearing has been initiated and notice served, board members participating in the decision process shall not communicate with a licensee or a licensee's attorney concerning any issue of fact or law involved in the formal administrative hearing.

3. Notice. A formal administrative hearing may be initiated upon proper notice to a licensee and held at a designated time and place based upon the following grounds:

a. violation-sufficient evidence or a serious complaint of an alleged violation to require a formal hearing shall be directed to legal or special counsel for administrative prosecution to justify a formal hearing;

b. failure to respond-a failure by the licensee to respond to a violations committee informal hearing;

c. irresolvable issues-a violations committee informal hearing failed to resolve all issues and requires further formal action;

d. irreconcilable issues-an interlocutory hearing failed to resolve all pertinent pending issues thus requiring further formal action; or

e. reaffirmation-reaffirmation of an interlocutory decree;

f. requirement-a formal administrative hearing is required.

E. Formal Administrative Hearing Procedures

1. Hearing Officer. The presiding hearing officer may be the board president, a vice-president, or other individual appointed by the president or his successor. The hearing officer shall have the responsibility to conduct a fair and impartial proceeding with the administrative duty as well as the authority to:

a. convene a formal administrative hearing;

b. rule on motions and procedural questions arising during the hearing such as objections or admissibility of evidence or examination of witnesses;

c. issue or direct staff to issue subpoenas;

d. declare recess;

e. maintain order;

f. enforce a standard of conduct to insure a fair and orderly hearing; and

g. remove any disruptive person from the hearing.

2. Oaths. The presiding hearing officer, executive director, or other board designee may administer oaths.

3. Jury. The board, comprised of a quorum of members, shall serve as an administrative jury to hear and determine the disposition of the pending matter based on the finding(s) of fact and conclusion(s) of law by receiving evidence and reaching a decision and ordering sanctions by an affirmative majority record vote of board members participating in the decision process.

4. Hearing Clerk. The board's executive director shall serve as the hearing clerk and shall maintain hearing records.

5. Prosecutor. The legal or special counsel shall prosecute the pending matter.

6. Recorder. The board-designated stenographer shall record all testimony dictated and evidence received at the hearing. The utilization of recording equipment may be employed.

7. Agenda

a. Docket. Contested matters shall be identified by reference docket number and caption title.

b. Complaint. The complaint may be read, unless waived by the licensee.

8. Order

a. Opening Statements. An opening statement by legal or special counsel may present a brief position comment with an outline of evidence to be offered. The licensee or licensee's legal counsel may present an opening defense position statement.

b. Evidence

i. Testimony Received. Testimony shall be received under oath administered by the presiding hearing officer, the executive director, or other staff or board member designated by the hearing officer.

ii. Evidence Introduction. All parties shall be afforded an opportunity to present evidence on all issues of fact and argue on all issues of law and respond by direct testimony, followed with cross examination as may be required for a full and true disclosure of the facts. The direct presentation of evidence shall be introduced by the legal or special counsel and shall be followed by the licensee, either in proper person or by legal counsel, by direct cross-examination or rebuttal, or any combination thereof.

iii. Examination. Witnesses may be directly examined and cross-examined. Additionally, witnesses and licensees may be questioned by members of the jury on matters for clarification.

iv. Rule Interpretation. Liberal rules of evidence shall be employed by the presiding hearing officer to provide adequate facts and law necessary for the board to deliberate and decide each case. The board's formal administrative hearing shall not be bound to strict rules of evidence.

v. Admissibility. Admissibility of evidence and testimony shall be determined by the presiding hearing officer as provided by law.

c. Closing Arguments. Closing arguments may be made by the licensee, either in proper person or by legal counsel, followed by closing arguments from the prosecuting legal or special counsel.

d. Board Decision. The board's decision shall be based on finding(s) of fact and conclusion(s) of law. The board's decision shall be based on a preponderance of the evidence presented at a formal administrative hearing, together with the board's determination of appropriate sanctions, if any, by an affirmative majority record vote of the board members participating in the decision process. Decisions shall be recorded and made part of the record.

e. Board Order. The board's order shall be rendered at the formal administrative hearing or taken under advisement and rendered within 30 days after the hearing and then served personally or domiciliary at the licensee's last known address by regular, registered, or certified mail, or by diligent attempt thereof.

f. Finality of Board Order. The board's order shall become final and effective 11 days after licensee's receipt of the board's notice of its decision, provided an appeal is not filed.

F. Complaint Dismissal. The board may, in its discretion and based upon insufficiency of evidence, orally dismiss a pending matter, or parts thereof, at a formal administrative hearing.

G. Transcripts. A complete record of all formal administrative hearing proceedings shall be transcribed, maintained, and available upon written request for a minimum of three years after the date the pertinent board order is final. The board may require the advance payment of the appropriate fees to cover the cost of preparation of the requested transcript.

H. Contempt. The failure of a licensee or witness to comply with a board order, after being duly served, constitutes contempt and the board may petition a court of competent jurisdiction to rule the witness or licensee in court to show cause why he should not be held in contempt of court.

I. Rehearing

1. An aggrieved licensee may file a motion for rehearing in proper form, within 10 days, requesting reconsideration or a rehearing by the board or by the interlocutory hearing panel.

2. Grounds. The board or an interlocutory hearing panel may consider the motion for rehearing at the next regularly scheduled board meeting. The motion shall allege one or more of the following:

a. the board's decision was clearly contrary to the law or evidence;

b. newly discovered evidence not available at the time of the hearing which may be sufficient to reverse the board's decision;

c. issues not previously considered need to be examined; or

d. it is in the public interest to reconsider the issues and the evidence.

3. Time. The board or the hearing officer shall grant or deny the motion for rehearing within 30 days after its submission.

J. Judicial Review. An aggrieved licensee may appeal the board's decision to a court of competent jurisdiction within 30 days from the entry of the board order or the denial of the rehearing motion.

K. Cease and Desist Orders; Injunctive Relief

1. The board is empowered to issue an order to any person or facility engaged in any activity, conduct, or practice constituting a violation of the R.S. 40:972 et seq., or the regulations promulgated thereto, directing such person or facility to forthwith cease and desist from such activity, conduct, or practice.

2. If the person or facility to which the board directs a cease and desist order does not cease and desist the prohibited activity, conduct, or practice within the timeframe directed by said order, the board may seek, in any court of competent jurisdiction and proper venue, a writ of injunction enjoining such person or facility from engaging in such activity, conduct, or practice.

3. Upon proper showing of the board such person or facility has engaged in the prohibited activity, conduct, or practice, the court shall issue a temporary restraining order prohibiting the person or facility from engaging in the activity, conduct, or practices complained of, pending the hearing on a preliminary injunction, and in due course a permanent injunction shall be issued after a contradictory hearing, commanding the cessation of the finally determined unlawful activity, conduct, or practices identified in the complaint.

L. Reinstatement or Re-Issuance of CDS License.

1. At any time after the suspension or revocation of a CDS license by the board, the board may reinstate the license, but only at an official meeting of the board, after written notice, and by vote of an affirmative majority of the members of the board present and voting. In the event a license is reinstated or reissued following previously applied sanctions relative to a violation of this Chapter, said reinstatement or re-issuance shall have affixed thereto an attachment or addendum, specifically setting forth any restrictions placed upon said reinstated or reissued license by the board.

2. In case of reinstatement, the reinstated licensee shall pay all applicable costs or fines, or both, and a reinstatement fee as provided for in the board's fee schedule established pursuant to R.S. 37:1184 and 40:972.

M. - M.4. Repealed

La. Admin. Code tit. 46, § LIII-2711

Promulgated by the Department of Health and Hospitals, Board of Pharmacy, LR 34:2132 (October 2008), Amended LR 501278 (9/1/2024).

AUTHORITY NOTE: Promulgated in accordance with R.S. 40:972.