N.M. Admin. Code § 16.15.5.8

Current through Register Vol. 36, No. 1, January 14, 2025

Section 16.15.5.8 - CONDUCT OF HEARING REGULATIONS

A.Opportunity for a Licensee or Applicant to have a Hearing: Pursuant to the Uniform Licensing Act, 61-1-1 to 61-1-33 NMSA 1978, every licensee or applicant shall be afforded notice and an opportunity to be heard before the Board shall have authority to take any action, the effect of which would be:

(1) to deny a license after examination for any cause other than failure to pass an examination or failure to meet educational or administrative requirements for the issuance of a license;

(2) to deny a license for which application has been duly made on the basis of reciprocity;

(3) to withhold the renewal of a license for any cause other than failure to pay the required renewal fee;

(4) to suspend a license; and

(5) to revoke a license.

B.Limitations: Any action which would have the effect of denying, revoking, or suspending a license shall be governed by the Uniform Licensing Act, 61-1-1, et seq. NMSA 1978.

C.Complaint Procedures:

(1)Inquiries Regarding Making a Complaint: A complaint may be initiated by any person through a telephone call, a written complaint, or a walk-in complaint presented to the Board office. Only those complaints that are in writing on the official Occupational Therapy Complaint Form will be formally addressed by the Board. The forms required for an official complaint can be obtained from the Board office, Board of Examiners for Occupational Therapy, P.O. Box 25101, Santa Fe, NM, 87504.

(2)Procedures for Receipt of a Complaint at the Board's Office: The Board Administrator, or any member of the Board who may be appointed by the Board Chairperson, will act as the Complaint Manager for the procedures outlined below. Upon receipt of a written, signed complaint, or upon the Board's own action as initiated by a vote of the majority of the members of the Board acting at a duly convened meeting of the Board, if the Board has reasonable cause to believe that the Occupational Therapy Act or the rules and regulations promulgated pursuant thereto have been or are being violated, the Complaint Manager shall:

(a) log in the date the complaint is received in the Board office;

(b) determine that the subject of the complaint is a licensed occupational therapist (OT), a licensed occupational therapy assistant (OTA), a person practicing on a provisional permit or a person not licensed to practice;

(c) assign a complaint number and set up an individual file. Complaint numbering shall begin in January of each year;

(d) forward the complaint to the professional board member who has been designated to review complaints (Complaint Chairperson); and

(e) send a certified letter to the complainant confirming receipt of the complaint.

(3)Review by the Complaint Committee:

(a) The Complaint Chairperson and Complaint Manager will comprise the Complaint

Committee, and will review all written, signed complaints filed against a licensee. The Complaint Committee shall provide the subject of the complaint ("respondent") with a copy of the complaint within thirty (30) calendar days

of receipt of the complaint in the Board office, unless the Complaint Committee reasonably determines that disclosure of the complaint at that time will substantially and materially impair the integrity or efficacy of the investigation. Nondisclosure at the initial stage of the complaint process shall be the exception, rather than the rule.

(b) Unless it has been determined that disclosure of the complaint will substantially and materially impair the integrity or efficacy of the investigation, so that the investigation is proceeding without notice to the respondent at the initial stage, the respondent shall be provided twenty (20) calendar days from the date of signature on the receipt of certified mail in which to file a written response to the complaint, and shall be advised that he/she is required to provide all documents and exhibits in support of his/her position.

(c) If the Complaint Committee has determined that it is in the best interest of the investigation to withhold disclosure of the complaint during the initial stage of the investigation, pursuant to Subparagraph (a) of Paragraph (3) of Subsection C of 16.15.5.8 NMAC, above, a copy of the complaint shall be provided to the respondent no later than at the time of the issuance of a Notice of Contemplated Action ("NCA"), if any.

(d) If the Complaint Chairperson and the Complaint Manager determine that further information is needed, the Committee may employ an investigator and/or experts to review complaints as part of its investigation.

(e) The purpose of an investigation is to gather further data regarding the complaint and to verify facts. All complaints, unless dismissed for lack of jurisdiction, will be investigated. Investigations may include: writing letters seeking further information; making phone calls to administrators or supervisors; making phone calls to witnesses; making onsite visits at facilities providing occupational therapy services and requesting official patient records.

(f) Upon completion of the investigation, the investigator will prepare a written report which includes its factual findings and conclusions, all pertinent exhibits, and which makes recommendations to the Board as to a course of action.

(g) If the Complaint Chairperson and the Complaint Manager agree that the Board does not have jurisdiction, both the complainant and respondent will be notified in writing by certified letter. The letter will explain why the case cannot be accepted for investigation and/or action (e.g., due to the statute of limitations, or the nature of the complaint being a fee dispute, or there being no violation of the Occupational Therapy Act or the rules and regulations promulgated thereto), or it may note that the complaint can be referred to another agency. The letter will come from the Board and may be signed by the Board Chairperson or, upon delegation by the Board Chairperson, by the Complaint Manager on behalf of the Chairperson.

D.Review by the Board:

(1) Unless the Complaint Committee dismisses the complaint pursuant to Subparagraph (g) of Paragraph (3) of Subsection C of 16.15.5.8 NMAC above, it shall present its report and recommendations(s) to the Board. The matter shall be referred to only by the assigned case number, and the identities of the parties shall not be disclosed to the Board until and unless an NCA is issued.

(2) The Complaint Chairperson shall not vote on the decision regarding the disposition of the complaint and shall not participate in any adjudicatory hearing or vote on any disciplinary action against the applicant or licensee arising out of the Complaint Committee's investigation. Decisions affecting complaints require a quorum of the Board.

(3) Subject to Paragraph (2) of Subsection D of 16.15.5.8 NMAC, above, after the Complaint Committee's report has been voted upon by the Board, the case will be closed, if the Board determines that there is not sufficient evidence or cause to issue an NCA. A certified letter from the Board will be sent within thirty (30) calendar days of the date of the Board's decision to both the complainant and respondent. The letter will state the Board's action and reasons for its decision.

(4) Subject to Paragraph (2) of Subsection D of 16.15.5.8 NMAC, above, after the Complaint Committee's report has been reviewed by the Board, the Board may vote to issue an NCA if it determines there is sufficient evidence or cause to believe that the Respondent has violated the Occupational Therapy Act, or the rules and regulations promulgated pursuant to the Act.

(5) If the Board votes to issue an NCA, a complete copy of the Complaint Committee's report, including exhibits, shall be forwarded to the Attorney General's Office for assignment of a prosecuting attorney for review and the Attorney General's decision as to whether there is a sufficient basis to prosecute.

(6) Following the issuance of a notice of contemplated action, the Board may (at its option) authorize a board member or the prosecutor to confer with the applicant or licensee for the purpose of seeking settlement of the complaint. Such settlement must be approved by a quorum of the Board, must be with the consent of the applicant or licensee, and shall include a knowing and intentional waiver by the applicant or the licensee of his/her rights to hearing under the Uniform Licensing Act.

E.Disciplinary Hearings: All disciplinary hearings shall be conducted in accordance with the Uniform Licensing Act.

N.M. Admin. Code § 16.15.5.8

06-14-97; 16.15.5.8 NMAC - Rn & A, 16 NMAC 15.5.8, 06-29-00; A, 04-03-03