201 KAR 42:050. Complaint procedure and
RELATES TO: KRS 309.351, 309.355(1), (2),
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
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
(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:
(b) Further investigation;
(c) Issuance of a formal complaint; or
(d) Referral to another government
(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
(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
(1) Resolve the case informally by agreed
(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
(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
(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.)