La. Admin. Code tit. 46 § XLV-9709

Current through Register Vol. 50, No. 6, June 20, 2024

Section XLV-9709 - Preliminary Review

A. A preliminary review may be initiated to determine if the complaint is jurisdictional and whether sufficient cause exists to warrant formal investigation only upon one or more of the following:

1. a complaint, received from a person, other than an individual employed by the board;

2. a report, received from a law enforcement agency, federal or state regulatory agency, a reporting authority verified by the board through electronic or other means, or a professional health or other monitoring or treatment program, that may implicate a potential violation of the laws or rules administered by the board; and

3. a motion duly adopted by a vote of two-thirds of the members, that sufficient cause exists to indicate a violation of the laws or rules administered by the board may have occurred.

B. A preliminary review is initiated upon the receipt, review and assignment of a case number at the direction of the DOI or the assigned investigator. During a preliminary review such action may be initiated and taken as deemed necessary or appropriate and additional information may be obtained to assist in the determination. As part of the preliminary review:

1. the board may obtain all files and records related to the complaint and to the complainant, which may be needed to determine if the complaint is jurisdictional and whether sufficient cause exists to warrant formal investigation; provided, however, no more than twenty additional files or records of patients may be obtained in connection with the review unless authorized by the board. To assist in a review a designee authorized by the board is authorized to issue, as necessary or upon request of board staff, subpoenas to obtain medical, hospital and pharmacy records and records from law enforcement, state and federal agencies. Affidavits may be obtained to preserve the testimony of a complainant and complaint witnesses;

2. the complainant may be contacted; and

3. the licensee may be provided the opportunity to respond to the complaint or provide related information; provided, at the time of the first communication from the board to a licensee regarding a complaint the licensee shall be provided:

a. a brief summary of the complaint or alleged violation or a copy of the complaint if authorization has been provided;

b. notice that the licensee may, at his own expense, retain legal counsel of his choice to represent his interest; and

c. such other information as may be deemed appropriate.

C. Any relevant information, documents and records gathered during the preliminary review will be added to the records or files of the case.

D. Preliminary review of a complaint shall be completed as promptly as possible within ninety days of initiation unless extended by the board for satisfactory cause. However, this period shall not apply to information received from local, state or federal agencies or officials relative to on-going criminal, civil or administrative investigations or proceedings, which do not provide a basis for preliminary review.

E. Nothing in this Chapter requires that a preliminary review be conducted if the complaint is not jurisdictional or information clearly indicates the need for formal investigation or emergent action.

F. At the conclusion of a preliminary review a determination shall be made as to whether the complaint is jurisdictional and there is sufficient cause for investigation. If the complaint:

1. is not jurisdictional or there is insufficient cause for investigation, a report and recommendation shall be submitted to the board to close the complaint without investigation. If approved by the board, the complainant and the licensee, if the licensee was notified of the preliminary review, shall be notified of the disposition. If not approved by the board, the board shall direct the boards staff to undertake such additional review as may be necessary or indicated within a specified period of time. A complaint closed after preliminary review shall not be considered an investigation by the board and need not be reported as such by a licensee on subsequent renewal applications to the board;

2. is jurisdictional and there is sufficient cause for investigation, a report and recommendation shall be submitted to the board to commence a formal investigation. The report shall include:

a. a brief summary of the complaint or alleged violation;

b. a statement of the possible violations of the law involved; and

c. a summary of the licensees biographical, licensure and disciplinary history on file with the board.

La. Admin. Code tit. 46, § XLV-9709

Promulgated by the Department of Health and Hospitals, Board of Medical Examiners, LR 412628 (12/1/2015), Amended LR 42571 (4/1/2016), Amended by the Department of Health, Board of Medical Examiners, LR 46340 (3/1/2020).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:1261-1292 and 37:1270(A)(5) and 37:1285.2.