La. Admin. Code tit. 46 § LXVI-707

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

Section LXVI-707 - Conduct of a Formal Hearing

A. Initiating the Process

1. The board initiates a formal hearing by issuing full notice of the hearing. A formal hearing may be the result of a complaint made by any manner specified in §703 of this Chapter.

2. Once full notice of the formal hearing has been served, no board member or officially designated hearing officer may communicate with any party to a formal hearing or to that party representative concerning any issue of fact or law involved in that formal hearing unless all parties or their representatives are present.

3. Full Notice. The written notice shall recite specific acts which the licensee is alleged to have committed and shall assert that those acts violate a statute or rule of the board.

a. The notice shall include:

i. a statement of the date, time, place, and nature of the hearing;

ii. a statement of the legal authority and jurisdiction under which the hearing is to be held;

iii. a reference to the particular sections of the statutes, rules or ethical standards involved;

iv. a short and plain statement of the matters asserted which shall be the subject of the hearing;

v. a statement of the rights of the parties.

b. Notice shall be given to all parties 30 days in advance of the proceedings to allow a reasonable opportunity for preparation.

c. The notice shall be delivered by registered or certified mail, return receipt requested. If the licensee cannot be found by this or other reasonable methods, the board may hold a hearing in the licensee's absence.

d. The content of the notice limits the scope of the hearing and of the evidence which may be introduced.

e. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Therefore, upon application, a more definite and detailed statement shall be furnished.

4. The chairperson shall appoint a hearing panel, consisting of one or more board members and totaling less than a quorum whose primary role shall be to hear evidence and arguments and to submit written findings, conclusions and recommendations to the board.

a. Any hearing officer appointed who because of bias or interest, is unable to assure a fair hearing, shall be recused from that particular proceeding on his own notice or motion of any member of the board, or motion of any party, if the majority of the board determines the recusal is warranted.

b. At the hearing, the charge shall be prosecuted by the board's personnel who conducted the investigation, who may be assisted by board attorney, and who will present evidence that disciplinary action should be taken against the licensee.

c. Upon motion filed before hearing served on all parties to the proceeding, the hearing officer may, in his discretion, permit any interested person to intervene in the proceedings if the panel determines that such person's interest would be substantially affected by the proceedings and is not adequately represented by another party to the proceedings, and that intervention would not cause serious delay, disruption or otherwise burden the hearing process.

B. Prehearing Procedure

1. Discovery

a. Depositions and interrogatories of witnesses may be taken and shall be admissible in the proceedings.

b. Evidence which was not made available to both parties at least five days in advance may be barred from introduction.

c. Evidence not within the scope of the notice may be excluded.

d. When the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

e. Documentary evidence in possession of the board may be received in the form of copies of excerpts, or by incorporation by reference.

f. Official notice may be taken of generally recognized technical or scientific facts. However, parties shall be afforded an opportunity to contest the material so noticed.

2. Subpoenas. The board is empowered by statute to issue subpoenas when requested in writing by any party to the proceedings.

a. The board, or its designated hearing officer, may sign and issue subpoenas when requested in writing by any party to a contested case. The cost of issuance of the subpoena(s) shall be assessed to the requesting party.

b. The information called for by a subpoena shall be reasonable, shall relate to the matter under consideration, and shall not be privileged.

c. If the person fails to comply with a subpoena, the board may apply to the judge of the appropriate district court for rule to show cause why the person should not be requested to comply.

3. Motions

a. A request to the board or the hearing officer by a party for particular action should be made in the form of a motion.

b. A motion may be made before, during or after a hearing.

c. All motions must be made at an appropriate time, according to the nature of the request.

d. Motions are directed to the hearing officer who shall dispose of them appropriately.

e. Motions made before or after the hearing shall be in writing. A motion made during the course of a hearing may be made orally.

f. The hearing officer may refer a motion to the board.

C. Hearing Procedure

1. Conduct of the Hearing

a. The hearing officer may refer a motion to the board.

b. The hearing will be conducted in accordance with the Administrative Procedure Act, R.S. 49:955-966.

i. Opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

ii. Objections to evidentiary offers may be made and shall be noted in the record.

c. Repealed.

2. Order of Proceedings

a. The hearing officer calls the session to order, identifies the case, subject of the case and cites the authority for holding the hearing.

b. The hearing officer asks the parties to identify themselves and their counsel.

c. All testimony be given under oath, such oath to be administered by the hearing officer.

d. Customary order of the proceedings shall be followed at the discretion of the hearing officer.

3. Evidence

a. In determining the admissibility of evidence, the hearing officer must follow the rules governing administrative hearings in Louisiana.

b. Constitutional guarantees of due process give the licensee a right to a decision based on evidence presented at the hearing. The hearing officer preparing the recommended decision shall only consider evidence presented at the hearing or officially noted in the record.

4. Records of hearing:

a. all papers filed and served in the proceedings;

b. all documents and other materials accepted as evidence at the hearing;

c. statements of matters officially noticed;

d. notices required by the statutes or rules, including notice of the hearing;

e. affidavits of service or receipts for mailing of process or other evidence of service;

f. stipulations, settlement agreements or consent orders, if any;

g. records of matters agreed upon at a pre-hearing conference;

h. reports filed by the hearing officer;

i. orders of the board and its final decision;

j. actions taken subsequent to the decision, including requests for reconsideration and rehearing;

k. a transcript of the proceedings, if one has been made, or a tape or stenographic record.

5. The record of the proceeding shall be retained until the time for any appeal has expired, or until the appeal has been concluded. The record is not transcribed unless a party to the proceeding so requests, and the requesting party pays for the cost of the transcript.

6. Cost for reproduction of the records of the hearing or any part thereof shall be assessed to the requesting party as prescribed by the board.

7. After the hearing is conducted, the hearing officer/panel shall issue a report to the board containing the officer/panels findings of fact, conclusions of the law, and recommendations.

La. Admin. Code tit. 46, § LXVI-707

Promulgated by the Department of Health and Human Resources, Radiologic Technology Board of Examiners, LR 11:870 (September 1985), amended by the Department of Health and Hospitals, Radiologic Technology Board of Examiners, LR 19:1434 (November 1993), LR 40:2262 (November 2014).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:3207(6).