La. Admin. Code tit. 46 § XLVII-3411

Current through Register Vol. 50, No. 4, April 20, 2024

Section XLVII-3411 - Formal Hearing

A.

1. The board has the authority, granted by R.S. 37:922, to bring administrative proceedings to licensees, applicants for licensure, individuals seeking enrollment or progression in an approved nursing program, and individuals practicing nursing without a license. The board and the individual are the parties to the proceeding. The individual has:

a. the right to appear and be heard, either in person or by counsel;

b. the right of notice, a statement of what accusations have been made;

c. the right to present evidence and to cross-examine; and

d. the right to have witnesses subpoenaed.

2. If the licensee does not appear, in person or through counsel, after proper notice has been given, the licensee may be considered to have waived these rights and the board may proceed with the hearing without the presence of the licensee.

3. The process of a disciplinary proceeding shall include certain steps and may include other steps as follows.

a. The Board of Nursing receives a complaint alleging that a licensee has acted in violation of the Nurse Practice Act. Communications from the complaining party shall be privileged and shall not be revealed to any person except when such documents are offered for evidence in a formal hearing and except those documents being subpoenaed by a court.

b.

i. The complaint is investigated by the board's employees to determine if there is sufficient evidence to warrant disciplinary proceedings. No board member may communicate with any party to a proceeding or his representative concerning any issue of fact or law involved in that proceeding, once notice of the proceeding has been served, and said member has notice thereof.

ii. A decision to initiate formal complaint or charge is made if one or more of the following conditions exist.

(a). The complaint is sufficiently serious.

(b). The licensee fails to respond to the board's correspondence concerning the complaint.

(c). The licensee's response to the board's letter or investigative demand is not convincing that no action is necessary.

(d). An informal approach is used, but fails to resolve all the issues.

c. A sworn complaint is filed by the executive director or designee, charging the violation of one or more of the provisions of R.S. 37:921 and the specific violation thereof.

B. Notice and Service

1. A time and place for a hearing is fixed by the executive director or a designee.

2. At least 20 days prior to the date set for the hearing, a copy of the charges and a notice of the time and place of the hearing are sent by certified mail, return receipt requested, to the individual's address of record. Notice to an individual is effective and service is complete when sent by certified mail to the individual's address of record.

3. At least 10 days prior to the scheduled hearing date, the individual shall respond in writing as to his/her intention to appear or not appear at the scheduled hearing. At least 10 days prior to the scheduled hearing date, the individual shall also file with the board a written response to the specific allegations contained in the notice of charges. Allegations not specifically answered shall be deemed admitted.

4. If the individual does not appear, in person or through counsel, after proper notice has been given, the individual has waived these rights and the board may proceed with the hearing without the presence of the individual.

C. Motions for Continuance. The board shall not postpone cases which have been scheduled for hearing absent good cause. A written motion by a licensee, applicant, or student for a continuance shall be filed with the board 10 days prior to the time set for the hearing, except for extreme emergencies. The motion shall contain the reason for the request, which reason must be based upon good cause and have relevance for due process. Requests for continuances may be approved or denied by the executive director or designee.

D. Subpoenas

1. The executive director, or a designee of the board, issues subpoenas for the board for disciplinary proceedings, and when requested to do so, may issue subpoenas for the other party. No subpoena shall be issued until the party who wishes to subpoena the witness first deposits with the board a sum of money sufficient to pay all fees and expenses to which a witness in a civil case is entitled pursuant to R.S. 13:3661 and R.S. 13:3671. Subpoenas include:

a. a subpoena requiring a person to appear and give testimony;

b. a subpoena duces tecum, which requires that a person produce books, records, correspondence, or other materials over which he has control.

2. A written notice to limit or quash a subpoena may be filed with the board, but not less than 72 hours prior to the hearing.

E. Hearing

1. The hearing is held, at which time the board's primary role is to hear evidence and argument, and to reach a decision. Any board member who, because of bias or interest, is unable to assure a fair hearing, shall be recused from that particular proceeding. The reasons for the recusal are made part of the record. Should the majority of the board members be recused for a particular proceeding, the governor shall be requested to appoint a sufficient number of pro tem members to obtain a quorum for the proceeding.

2. The board is represented by its staff and by the board's attorney. Evidence is presented that disciplinary action should be taken against the individual. The individual may present evidence personally or through an attorney, and witnesses may testify on behalf of the individual.

3. Evidence includes the following:

a. oral testimony given by witnesses at the hearing, except that, for good cause, testimony may be taken by deposition (cost of the deposition is borne by requesting party) and/or by sworn affidavits;

b. documentary evidence, i.e., written or printed materials including public, business or institutional records, books and reports; such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference, if the incorporated materials are available for examination by the parties before being received into evidence;

c. visual, physical and illustrative evidence;

d. admissions, which are written or oral statements of a party made either before or during the hearing;

e. facts officially noted into the record, usually readily determined facts making proof of such unnecessary;

f. all testimony is given under oath. If the witness objects to swearing, the word "affirm" may be substituted.

4. The president of the board presides and the customary order of proceedings at a hearing is as follows.

a. The person presenting evidence against the individual makes an opening statement of what (s)he intends to prove, and what action (s)he wants the board to take.

b. The individual, or her/his attorney, makes an opening statement, explaining why (s)he believes the charges against her/him are not legally founded.

c. The person representing the board presents the case against the individual.

d. The individual, or her/his attorney, cross-examines.

e. The individual presents evidence.

f. The person who presented evidence against the individual cross-examines.

g. The person presenting evidence against the individual rebuts the latter's evidence.

h. The individual rebuts the evidence against her/him.

i. Both parties make closing statements. The attorney for the board makes the final statement.

j. The board may impose reasonable time limits on all sides in a hearing, provided that the limits will not unduly prejudice the rights of the parties.

k. The board may exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record. When a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

l. Motions may be made before, during, or after a hearing. All motions shall be made at an appropriate time, according to the nature of the request. Motions made before or after the hearing shall be in writing. Those made during the course of the hearing may be made orally since they become part of the transcript of the proceeding.

5. The records of the hearing shall include:

a. all papers filed and served in the proceeding;

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 or process or other evidence of service;

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

g. records of matters agreed upon at a prehearing 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 recording or stenographic record.

6. 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. A party who appeals a decision of the board shall pay all of the costs of preparation of the original and any certified copy of the record of the proceeding that is required to be transmitted to the reviewing court.

7. The decision of the board shall be reached according to the following process:

a. determine the facts in the issue on the basis of the evidence submitted at the hearing;

b. determine whether the facts in the case support the charges brought against the individual;

c. determine whether charges brought are a violation of the Nurse Practice Act or rules and regulations of the board.

8. The vote of the board shall be recorded. Minority views may be made part of the record.

9. Sanctions against the individual who is party to the proceeding are based upon the findings of fact and conclusions of law determined by the hearing. The party is notified by mail of the decision of the board.

F. Disciplinary Sanctions

1. The type of disciplinary sanctions and length of time specified for the sanctions shall be determined on an individual basis, considering all facts pertinent to the case.

2. The board sets forth guidelines with ranges of disciplinary sanctions from which disciplinary penalties, including fines, may be imposed. These guidelines are intended to serve only as a guide for staff and board members when considering penalties which could be imposed for specific violations of the Nurse Practice Act. Guidelines are in no way binding on the board when dealing with disciplinary matters. The board may order licensure sanctions or fines, or both.

3. The disciplinary guidelines are based upon a single count violation. Multiple counts of violations of the same action, or other unrelated violations contained in the same complaint will be grounds for enhancement of penalties. Each day of a continuum of violations may be treated as a separate violation.

4. In determining sanctions, the staff shall consider aggravating or mitigating circumstances identified by the board in addition to any other factors. The list of aggravating and mitigating circumstances in the guidelines is not to be considered an exclusive list of circumstances.

a. Aggravating circumstances may result in the board issuing maximum sanctions, or they may justify enhancement of a penalty beyond the maximum guidelines.

b. Mitigating or extenuating circumstances may justify lessening of the sanctions below the minimum guidelines. License suspensions may be stayed with stipulated probations in some extenuating circumstances.

5. The order may stipulate remedial education, specific evaluation and therapy, and other sanctions as deemed necessary and appropriate to the case.

G. Reconsideration or Rehearing

1. The board shall reconsider a matter when ordered to do so by a higher administrative authority or when the case is remanded for reconsideration or rehearing by a court to which the board's decision has been appealed.

2. The board may reconsider a matter which it has decided. This may involve rehearing the case, or it may involve reconsidering the case on the basis of the record. Such reconsideration may occur when a party files a petition requesting that the decision be reconsidered by the board and specifies the particular grounds therefor.

3. A petition by a party for reconsideration or rehearing must be in proper form and filed within 10 days from the date of entry of the decision. A decision is deemed to be entered when it is signed by the executive director or designee and sent by certified mail to the individual's address of record. The petition shall set forth the grounds for the rehearing, which include one or more of the following.

a. The board's decision is clearly contrary to the law and the evidence.

b. There is newly discovered evidence, which was not available to the individual at the time of the hearing and which may be sufficient to reverse the board's action.

c. There is a showing that issues not previously considered ought to be examined in order to dispose of the case properly.

d. It would be in the public interest to further consider the issues and the evidence.

e. Upon the board's receipt of a petition for rehearing or reconsideration, the board may affirm or modify the decision or grant a rehearing to all or any of the parties and on all or part of the issues for any of the above stated reasons. An order granting a rehearing shall specify with particularity the ground or grounds on which the rehearing is granted, and the rehearing shall cover only those matters so specified.

H. Emergency Action. If the board finds that public health, safety, and welfare requires emergency action and a finding to that effect is incorporated in its order, summary suspension of a license may be ordered by the executive director or designee pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined at the next available regularly scheduled board meeting.

I. Disciplinary Proceedings in Another Licensing Jurisdiction

1. When a licensee has her/his license revoked, suspended, denied or sanctioned in other ways for disciplinary reasons by the original licensing jurisdiction or by a subsequent licensing authority, that licensee shall be notified that her/his Louisiana license is automatically suspended, except for the following:

a. nonpayment of fees;

b. a person in the Recovering Nurse Program (RNP) receives permission of RNP to transfer to another state, and the said state encumbers the license based on divulging participation in RNP;

c. the licensee is issued a reprimand and the licensee agrees to having her/his Louisiana license reprimanded identically to or in excess of the said jurisdiction's reprimand; and

d. the license is encumbered with a reprimand with stipulations and the licensee agrees to having her/his Louisiana license probated with stipulations that are identical to, or exceed, the stipulations in said jurisdiction.

2. The licensee may have her/his license reinstated provided that the licensee:

a. provides evidence of an unencumbered license by the involved licensing authority and all subsequent licensing authorities; and

b. meets requirements for reinstatement of license as described in this Chapter.

J. Adjudged Incompetence

1. If the board is notified that a licensee has been judged incompetent to handle his/her own affairs, that licensee shall be notified that his/her Louisiana license is automatically suspended.

2. The licensee may have his/her license reinstated provided that:

a. he/she provides evidence that the reason for the suspension no longer exists;

b. he/she meets requirements for reinstatement of license as described in this Chapter.

K. Costs of Disciplinary Proceedings

1. In addition to disciplinary fines, costs will be assessed to individuals for the following activities:

a. consent order;

b. settlement order;

c. administrative hearings;

d. monitoring fine for probated licenses.

2. All fines shall be paid within 30 days of the order, unless other arrangements have been ordered or stipulated in the order, consent order or settlement order. Failure to pay the costs and fines within the stated time shall result in automatic suspension of the license, or denial of reinstatement of licensure, or denial of licensure.

La. Admin. Code tit. 46, § XLVII-3411

Promulgated by the Department of Health and Human Resources, Board of Nursing, LR 7:75 (March 1981), amended by the Department of Health and Hospitals, Board of Nursing, LR 24:1293 (July 1998), LR 31:1586 (July 2005), Amended by Department of Health, Board of Nursing, LR 431964 (10/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:918, R.S. 37:921, R.S. 37:922 and R.S. 37:923.