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201 KAR 43:060. Complaint and Disciplinary Process


Published: 2015

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      201 KAR 43:060. Complaint and

Disciplinary Process.

 

      RELATES

TO: KRS 319C.050(4), 319C.060(2), 319C.070, 319C.110

      STATUTORY

AUTHORITY: KRS 319C.060(2)

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS 319C.060(2) requires the board to promulgate an

administrative regulation governing the regulation of licensees. KRS 319C.070,

319C.050(4), and 319C.110 require the board to investigate and take disciplinary

action against licensees who violate KRS Chapter 319C and the associated administrative

regulations. This administrative regulation details the process by which the board

completes those investigations and takes that action.

 

      Section

1. Definitions. (1) "Act" means KRS Chapter 319C.

      (2)

"Board" is defined by KRS 319C.010(3).

      (3)

"Charge" means a specific allegation contained in a document issued

by the board or hearing panel alleging a violation of a specified provision of

KRS Chapter 319C or 201 KAR Chapter 43.

      (4)

"Complaint Committee" means the committee appointed pursuant to

Section 2 of this administrative regulation.

      (5)

"Formal complaint" means a formal administrative pleading or notice

of administrative hearing authorized by the board that sets forth charges

against a licensee or applicant and commences a formal disciplinary proceeding

in accordance with KRS Chapter 13B.

      (6)

"Initiating complaint" means an allegation alleging misconduct by a

licensee or applicant or alleging that an unlicensed person is engaging in

unlicensed practice or using a title without holding a license.

      (7)

"Order" means the whole or a part of a final disposition of a hearing.

      (8)

"Presiding officer" means the person appointed by the board to

preside at a hearing held pursuant to KRS Chapter 13B, and shall include a

hearing officer, a member or members of the hearing panel, or both.

      (9)

"Respondent" means the person against whom an initiating or a formal

complaint has been made.

 

      Section

2. Initiating Complaint. (1) Source of initiating complaint. An initiating

complaint may be initiated by the board, by the public, or by a governmental

agency. A certified copy of a court record for a misdemeanor or felony

conviction shall be considered a valid initiating complaint.

      (2)

Form of initiating complaint. Initiating complaints shall:

      (a)

Be in writing;

      (b)

Clearly identify the person against whom the initiating complaint is being

made;

      (c)

Contain the date;

      (d)

Identify by signature the person making the initiating complaint; and

      (e)

Contain a clear and concise statement of the facts giving rise to the

initiating complaint.

      (3)

Receipt of initiating complaint. An initiating complaint shall be submitted to

the Board Office at the Office of Occupations and Professions.

      (4)

Response. A copy of the initiating complaint shall be mailed to the respondent.

The respondent shall file with the board a written response to the initiating

complaint:

      (a)

Within fifteen (15) days of the date on which the initiating complaint was

mailed; or

      (b)

Within a specified period of time if an extension is requested in writing by

the respondent and granted by the board. In order to be granted an extension,

the respondent shall provide proof of good cause justifying the extension.

      (5)

Complaint Committee.

      (a)

The complaint committee shall consist of no more than two (2) board members

appointed by the chair of the board to:

      1.

Review initiating complaints, responses, and investigative reports;

      2.

Participate in informal proceedings to resolve formal complaints; and

      3.

Make recommendations for disposition of initiating complaints and formal

complaints to the full board.

      (b)

The complaint committee may be assisted by the board staff and counsel to the

board.

      (6)

Consideration of initiating complaint. At the next regularly-scheduled meeting

of the board or as soon thereafter as practicable, the board or the complaint

committee shall review the initiating complaint and response. The board, upon

recommendation of the complaint committee, shall determine if an investigation

is warranted, and if so, the board shall appoint an agent or representative of

the board to conduct an investigation of the initiating complaint.

      (7)

Investigation.

      (a)

If the board directs that an investigation be completed, the respondent shall

be interviewed as a part of that investigation. With the consent of the

respondent, a meeting may be scheduled at which time the respondent may respond

further to the allegations of the initiating complaint. The board and the

respondent shall have the right to be represented at the meeting by legal

counsel. The respondent’s failure to submit to an interview or cooperate with

an investigation shall not deprive the board of the authority to take action

pursuant to paragraph (c) of this subsection.

      (b)

Report of investigation. Upon the completion of the investigation, the person

or persons making that investigation shall submit a written report to the board

containing a succinct statement of the facts disclosed by the investigation.

      (c)

Consideration of complaint and investigative report. Based on consideration of

the complaint; the investigative report, if any; and the psychological or

physical examination, if any, the board shall determine if there has been a

prima facie violation of the Act.

      1.

If it is determined that the facts alleged in the initiating complaint or

investigative report do not constitute a prima facie violation of KRS Chapter

319C or 201 KAR Chapter 43, the board shall notify the person or entity making

the initiating complaint and the respondent that no further action shall be

taken at the present time.

      2.a.

If it is determined that there is a prima facie violation of KRS Chapter 319C

or 201 KAR Chapter 43, the board shall issue a formal complaint against the

licensee or applicant.

      b.

In the case of a prima facie violation of KRS 319C.020(1) and the respondent is

not a licensee or an applicant, the board shall take one (1) or all of the

following actions:

      (i)

Issue a cease and desist order;

      (ii)

File suit to enjoin the violator pursuant to KRS 319C.050(2); or

      (iii)

Seek criminal prosecution pursuant to KRS 319C.050(2).

      (d)

If a board member participates in the review of a matter, either as a member of

the complaint committee or as the investigator, that person shall not vote according

to the process outlined in paragraph (c) of this subsection. However, that

person may be counted as a present member for the purposes of establishing and

maintaining a quorum of the board.

 

      Section

3. Formal Complaint. If the board votes to file a formal complaint, a notice of

administrative hearing shall be filed as required by KRS 13B.050.

 

      Section

4. Formal Response. (1) Within twenty (20) days of service of the notice of

administrative hearing, the respondent shall file with the board a written

response to the specific allegations set forth in the notice of administrative

hearing.

      (2)

Allegations not properly responded to shall be deemed admitted.

      (3)

The board may, if there is good cause, permit the late filing of a response.

 

      Section

5. Composition of the Hearing Panel. Disciplinary actions shall be heard by a

hearing officer and:

      (1)

The full board or a quorum of the board;

      (2)

A hearing panel consisting of at least one (1) board member appointed by the

board; or

      (3)

The hearing officer alone in accordance with KRS 13B.030(1).

 

      Section

6. Notification of Complainant. Upon final resolution of a complaint submitted

pursuant to this process, the board shall notify the person or entity making

the initiating complaint of the outcome of the action in writing. (39 Ky.R.

1965; eff. 5-31-2013.)