201 KAR 42:050. Complaint procedure and

disciplinary action.

 

      RELATES TO: KRS 309.351, 309.355(1), (2),

(6), 309.362

      STATUTORY AUTHORITY: KRS 309.355(3)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

309.355(1) requires the board to regulate the practice of massage therapy. KRS

309.355(2) requires the board to investigate every alleged violation and take appropriate

action. This administrative regulation establishes the procedure for filing a

complaint and the action to be taken by the board on a complaint and

disciplinary action of a licensee or applicant in violation of KRS 309.351 or

309.362.

 

      Section 1. Definitions. (1)

"Complaint committee" means a committee of the board that:

      (a) Reviews an initiating complaint; and

      (b)1. Recommends dismissal or further

investigation of the complaint; or

      2. Determines the existence of sufficient

evidence to bring a formal complaint.

      (2) "Formal complaint" means a

formal administrative pleading authorized by the board that sets forth a charge

against a licensee or applicant and commences a formal disciplinary proceeding

under KRS Chapter 13B.

      (3) "Initiating complaint"

means a written complaint alleging a violation of KRS 309.350 through 309.364.

      (4) "Respondent" means the

person against whom an initiating complaint or formal complaint has been made.

 

      Section 2. Initiating Complaint. (1) A

complaint may be initiated by:

      (a) An individual;

      (b) A state or government agency;

      (c) Another member of the massage therapy

profession; or

      (d) The board.

      (2) An initiating complaint shall be made

in writing to the board and received in the board office.

      (3) The board may conduct an

investigation on its own initiative, without receipt of a complaint, if the

board has reason to believe that there may be a violation of KRS 309.350

through 309.364, or administrative regulations promulgated in relation thereto.

      (4) A certified copy of a court record

for conviction of a misdemeanor or felony shall be considered a valid reason

for an initiating complaint. The complaint shall be submitted on a Form to File

a Complaint or Unlicensed Activity Report.

 

      Section 3. Procedure Upon Receipt of

Initiating Complaint. (1) Upon receipt of the initiating complaint, the board

office shall send a copy of the initiating complaint to the respondent at the

respondent’s last address of record with the board.

      (2) The respondent shall file a response

to the initiating complaint with the board within twenty (20) days after the

board mails the initiating complaint to the respondent.

      (3) The allegations in an initiating

complaint shall be considered true if the respondent fails to respond to the

initiating complaint in a timely fashion.

 

      Section 4. The complaint committee shall:

      (1) Review the initiating complaint and

the response filed by the respondent at its next meeting; and

      (2) Recommend one (1) of the following

options to the board at the board’s next meeting:

      (a) Dismissal;

      (b) Further investigation;

      (c) Issuance of a formal complaint; or

      (d) Referral to another government

agency.

      (3) A complaint committee member having

any known conflict of interest shall be recused from the matter and disclose

the existence of the conflict in a regular board meeting.

 

      Section 5. Board Action upon

Recommendation of Complaint Committee. At the board’s next meeting following

review by the complaint committee, the board shall review the committee’s recommendations

and shall accept or reject the recommendations in whole or in part.

 

      Section 6. Dismissals. The complainant

and respondent shall be notified if a case is dismissed.

 

      Section 7. Investigations. (1) If

investigation is warranted, the board shall appoint one (1) of its members or

an agent or representative of the board to conduct an investigation of the

respondent.

      (2) In its investigation, the board may

be assisted by:

      (a) Board staff;

      (b) A board agent; or

      (c) The Office of the Attorney General.

 

      Section 8. Formal complaints. If the

board finds that sufficient evidence exists to file a formal complaint, the

board shall:

      (1) Resolve the case informally by agreed

order; or

      (2) File a formal complaint, in

accordance with KRS Chapter 13B.

 

      Section 9. Settlement by Informal

Proceedings. (1) The board, through counsel, may enter into informal

discussions or negotiations with the respondent for the purpose of appropriately

dispensing with the matter.

      (2) An agreed order or settlement reached

through informal proceedings shall be approved by the board and signed by the

chair of the board, the respondent and the respondent’s attorney. A copy shall

be placed in the licensee's file and a copy shall be mailed to the complainant.

      (3) The board may employ mediation as a

method of resolving the matter informally.

 

      Section 10. Procedures for Disciplinary

Hearings. (1) All procedures for disciplinary hearings shall conform to KRS

Chapter 13B.

      (2) Testimony to be considered by the

board, hearing panel, or hearing officer, if any, may be taken by deposition. A

party or witness may be allowed to testify by deposition, rather than attend

the hearing, upon a showing of inability to attend and a showing that other

parties shall have an opportunity to cross-examine at the deposition. The

presiding officer or hearing officer, if any, shall rule upon motions to allow

testimony to be considered by deposition, subject to review and approval by the

board.

      (3) The presiding officer or hearing

officer, if any, may order that at least five (5) days prior to the hearing,

each party shall file a summary of each witness’ expected testimony.

 

      Section 11. Final Disposition. Upon reaching

a decision, the board shall notify the respondent in writing, by certified mail

or personal service, of its final disposition of the matter and the complainant

shall be notified by regular mail.

 

      Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

      (a) "Form to File a Complaint",

January 2011; and

      (b) "Unlicensed Activity

Report", January 2011.

      (2) This material may be inspected,

copied, or obtained, subject to applicable copyright law, at the Division of

Occupations and Professions, 911 Leawood Drive, Frankfort, Kentucky 40602,

(502) 564-3296, Monday through Friday, 8 a.m. to 4:30 p.m. (32 Ky.R. 1019;

1227; eff. 2-3-2006; 37 Ky.R. 1016; 1700; 1992; eff. 3-4-2011.)