201 KAR 9:240. Emergency

orders and hearings; appeals and other proceedings.

 

      RELATES TO: KRS 218A.205, 311.565(1)(i),

311.592

      STATUTORY AUTHORITY: KRS 311.565(1)(a)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

311.565(1)(i) authorizes the board to promulgate administrative regulations to promote

the efficient and fair conduct of disciplinary proceedings. This administrative

regulation establishes the procedure to be followed in handling emergency

proceedings before the board.

 

      Section 1. Authority to Issue Emergency

Order; Timing. (1) An inquiry panel or the panel’s chair, acting on behalf of

the inquiry panel, may issue an emergency order restricting or suspending a

physician’s license to practice medicine or osteopathy within the Commonwealth

of Kentucky in accordance with KRS 311.592 and 13B.125.

      (2) An inquiry panel shall make this

determination following a completed investigation pursuant to KRS 311.591(3) at

a regularly scheduled meeting of the inquiry panel.

      (3)(a) An inquiry panel’s chair may act on

behalf of the inquiry panel and issue an emergency order restricting or

suspending a physician’s license to practice medicine or osteopathy within the

Commonwealth of Kentucky if the panel chair determines that a basis for an

emergency order as established in subsection (1) of this section exists and the

circumstances of the specific case warrant emergency action prior to the next

regularly scheduled meeting of the inquiry panel.

      (b) If an emergency hearing is scheduled

prior to the next regularly scheduled meeting of the inquiry panel, the panel

chair may act on behalf of the inquiry panel and issue the complaint required

to support the continuation of the emergency order.

      (c) If the panel chair acts on behalf of

the inquiry panel pursuant to paragraph (a) or (b) of this subsection, the

panel chair shall report any action to the inquiry panel at its next regularly

scheduled meeting.

 

      Section 2. Findings of Fact and

Conclusions of Law. (1) The inquiry panel, or the panel chair acting on the

panel’s behalf, may consider any evidence or information in making a charging

decision pursuant to KRS 311.591(3) or in making the determination to issue an

emergency order pursuant to Section 1 of this administrative regulation. The

evidence or information may include:

      (a) An application for licensing or

renewal filed by the physician with any licensing board;

      (b) Any prior or current order issued by

the board or one (1) of its panels affecting the physician’s Kentucky license;

      (c) Any prior or current order issued by

another state’s licensing authority affecting the physician’s license in that

state;

      (d) The records of any criminal

proceeding involving the physician;

      (e) A report by or record of any

governmental agency, including a law enforcement agency report, a Kentucky All

Schedule Prescription Electronic Reporting (KASPER) report or summary, or a

reference to a governmental agency or KASPER report;

      (f) Patient records maintained by the

physician, or summaries of or references to the contents of those records;

      (g) Records or reports issued or

maintained by a pharmacy;

      (h) Records or reports issued or

maintained by a hospital, including a peer review report relating to the

physician or medical records of a patient treated by the physician in the

hospital;

      (i) Records or reports issued or

maintained by any business;

      (j) An investigative report prepared by a

board investigator, including any summary of a verbal or written statement by a

witness or an evidentiary document reviewed by an investigator;

      (k) An investigative report prepared by a

board investigator involving another investigation conducted by the board

relating to the physician;

      (l) An oral or written statement by the

physician, or the physician’s agent, relating to the investigation;

      (m) A report of a clinical assessment

relating to the physician, including a report by the Center for Personalized

Education for Physicians (CPEP), Denver, Colorado;

      (n) A physical, mental, or substance

abuse evaluation or assessment of the physician;

      (o) A written report of a patient record

review conducted by a consultant under contract with the board to perform reviews;

or

      (p) A written report of a patient record review

conducted by a licensed physician performing a review on behalf of the physician.

      (2) The evidence or information

considered by the inquiry panel or panel chair, acting on behalf of the inquiry

panel, shall constitute the board’s record of proceedings relating to the

issuance of an emergency order of restriction or suspension.

      (3) If the inquiry panel or the panel

chair, acting on behalf of the inquiry panel, issues an emergency order of

restriction or suspension against a physician’s license, the emergency order

shall be a written order and shall include findings of fact and conclusions of

law, supported by the board’s record of proceedings, upon which the agency

bases the emergency order.

      (4) Any emergency order shall be served

upon the affected physician in the manner specified in KRS 13B.050(2). The emergency

order shall become effective immediately upon receipt by the affected physician

or the physician’s representative.

 

      Section 3. Authority to Issue Emergency

Order of Suspension Upon Felony Indictment. (1) If a licensee is indicted in

any state for a crime classified as a felony in that state and the conduct

charged relates to a controlled substance, that licensee’s practice shall be

considered an immediate danger to the public health, safety, or welfare pursuant

to KRS 311.592 and 13B.125.

      (2) If the board receives verifiable

information that a licensee has been indicted in any state for a crime

classified as a felony in the state of indictment and the conduct charged

relates to a controlled substance, the inquiry panel or panel chair, acting on

behalf of the inquiry panel, shall immediately issue an emergency order

suspending or restricting that licensee’s Kentucky license to prohibit the

licensee from prescribing, dispensing, or otherwise utilizing a controlled

substance in Kentucky, until further order following the final resolution of the

criminal charges in the indictment.

      (3) The emergency order of suspension

shall remain in effect until:

      (a) The criminal charges contained in the

indictment are finally resolved; and

      (b) The board’s hearing panel has finally

resolved the matter after receipt of the court documents finally resolving the

criminal charges in the indictment.

      (4) If the affected physician requests an

emergency hearing, the hearing officer shall affirm the emergency order of

suspension if presented with a certified copy of the indictment.

 

      Section 4. Request for and Timing of

Emergency Hearing; Waiver. (1) A physician required to comply with an emergency

order may request an emergency hearing at any time between the effective date

of the emergency order and the effective date of an order finally resolving the

underlying complaint.

      (2)(a) A request for an emergency hearing

shall be presented to the board in writing, but may be submitted by facsimile

or email.

      (b) Upon receipt of a written request for

an emergency hearing, the board shall schedule the emergency hearing on one (1)

of the ten (10) working days following the date of receipt of the written request.

The day on which the written request is received by the board shall not be

considered one (1) of the ten (10) working days.

      (c) A written request shall be considered

received on a particular work day if it is received by the board during the

board’s scheduled operating hours for that day. If the board receives a request

for an emergency hearing by facsimile or email received after scheduled

operating hours, the request shall be considered to have been received the next

scheduled work day of the board.

      (3)(a) A written request for an emergency

hearing shall be considered a certification by the affected physician and the

physician’s counsel, if any, that the physician is available to participate in

an emergency hearing on any of the ten (10) working days following the date of

the board’s receipt of the written request for an emergency hearing.

      (b) The refusal of the physician to

accept a hearing date on a date specified by the board within the ten (10)

working days shall constitute a waiver of the requirement of KRS 13B.125(3) to

conduct the emergency hearing within ten (10) working days of receipt of a request.

      (c) If there is a waiver of the ten (10)

working day requirement, the hearing officer and parties shall schedule the

emergency hearing to commence at the next date available to the hearing officer

and both parties.

      (4)(a) Unless there is a waiver of the

requirement, the board shall commence the emergency hearing within ten (10)

working days of receipt of the written request for an emergency hearing.

      (b) If the parties are unable to conclude

the emergency hearing on the initial date assigned, the emergency hearing shall

resume on the next date available to the hearing officer and both parties and

shall continue on dates available to the hearing officer and both parties until

concluded.

 

      Section 5. Scope and Conduct of Emergency

Hearing; Hearing Officer’s Role. (1) The emergency hearing shall be conducted

by the inquiry panel, its panel chair, acting on behalf of the inquiry panel,

or by a qualified hearing officer appointed by the board’s executive director.

      (2) The singular function of the party

conducting the emergency hearing shall be to determine whether the findings of

fact providing the bases for the emergency order are supported by substantial

evidence and, if so, constitute one (1) or more violations of KRS 311.595.

      (3) Given the ten (10) working day requirement

of KRS 13B.125(3) and the unique nature of the hearing, it shall not be

practicable pursuant to KRS 13B.125(3) to conduct the emergency hearing in

conformity with the provisions of KRS 13B.050; 13B.060; 13B.070; 13B.080(2),

13B.080(3){as it relates to discovery orders} or (4){to the extent it conflicts

with this administrative regulation}; or KRS 13B.090(1){to the extent it

prohibits consideration of hearsay evidence}, (2) {other than the requirement

that all testimony shall be made under oath or affirmation}, (3) or (7); KRS

13B.110 or 13B.120.

      (4) There shall not be a motion practice,

prior to or as part of the emergency hearing, relating to the legality or

validity of the emergency order under consideration or relating to evidentiary

issues.

      (5)(a) The standards of acceptable and

prevailing practice within the Commonwealth may be determined by an expert

review of a physician’s patient records by a qualified expert.

      (b) An expert review may be conducted on

the board’s behalf by a licensed physician who has entered into a contractual

relationship with the board to serve as a board consultant. The contractual relationship

shall indicate that the board has determined that the physician is legally

qualified to provide an expert opinion regarding the standards of acceptable

and prevailing medical practice within the Commonwealth of Kentucky and whether

the affected physician has violated those standards or committed other professional

violations of the board’s statutes.

      (c) The party conducting the emergency

hearing shall not conduct a separate hearing or inquiry into the qualifications

of the contractual reviewer who performed the record review on behalf of the

board or of a licensed physician who performed a record review on behalf of the

affected physician.

      (6) The emergency hearing shall be

conducted as required by KRS Chapter 13B and this subsection.

      (a) The board shall produce and the

hearing officer shall accept the record of the proceedings relating to the

issuance of an emergency order under consideration.

      (b)1. The board shall not be required to

produce any further evidence to support the emergency order.

      2. The board may call the affected

physician to testify, as if under cross-examination, regarding the factual

accuracy of evidence or information cited in the record of proceedings relating

to the issuance of the emergency order.

      (c) The affected physician may testify, produce

factual evidence, produce hearsay evidence through documents, or call lay witnesses

to the extent that the evidence specifically tends to demonstrate that a

factual statement relied upon by the board’s contractual reviewer or by the

inquiry panel or panel chair, acting on behalf of the inquiry panel, is

factually incorrect or false.

      (d) The affected physician may only call

the board’s contractual reviewer for the purpose of cross-examination if the

hearing officer determines on the record that the physician’s evidence has established

that one (1) or more factual statements relied upon by the contractual reviewer

in the expert report is demonstrably false or incorrect. If the hearing officer

makes that determination, the affected party may call the board’s contractual

reviewer for the purpose of cross-examination under the following conditions:

      1. The cross-examination of the board’s

contractual reviewer is scheduled at the earliest date available to the

reviewer and the parties that does not disrupt the normal operation of the

reviewer’s professional practice and does not disrupt the care of the

reviewer’s normal patients;

      2. The cross-examination of the board’s

contractual reviewer is limited to factual statements and opinions rendered in

the reviewer’s report, and the effect upon an opinion of a determination that

one (1) or more underlying factual statements relied upon by the reviewer is

false or factually incorrect; and

      3. Upon completion of the

cross-examination, the board and the hearing officer may ask questions of the

contractual reviewer relevant to the cross-examination.

      (7)(a) Within five (5) working days of

completion of the emergency hearing, the hearing officer shall issue a written

decision in which the hearing officer shall:

      1. Affirm the emergency order if there is

substantial evidence of a violation of law and the inquiry panel has determined

that a violation constitutes an immediate danger to the public health, safety,

or welfare. If there is substantial evidence of a violation of law, the hearing

officer shall not substitute his or her judgment as to the level of public

protection necessary for the emergency order;

      2. Revoke the emergency order if there is

no substantial evidence of a violation of law. The findings of fact shall be

found to be supported by substantial evidence if there is a factual basis for

the findings, even if there is a conflict in the evidence or information

considered by the inquiry panel or panel chair, acting on behalf of the inquiry

panel. A finding that there is no substantial evidence to support the findings

of fact shall require a finding that there is a complete absence of factual

basis for the findings; or

      3. Modify the emergency order if the

emergency order relied upon multiple violations of law and the hearing officer

has determined that there is no substantial evidence to support one (1) or more

of those violations. Upon making that finding, the hearing officer may consider

each remaining violation for which there is substantial evidence and may modify

the level of protection if the modified protection fully protects the public

health, safety, or welfare based upon the dangers presented by the licensee’s

commission of each remaining violation.

      (b) The hearing officer shall not include

additional findings of fact or conclusions of law in any written decision

affirming the emergency order under consideration. The written decision shall

be sufficient if it determines that there was substantial evidence of a violation

of law and the panel had determined that the violation constituted an immediate

danger to the public health, safety, or welfare.

      (c) If the hearing officer issues a

written decision revoking or modifying the emergency order under consideration,

the hearing officer shall include findings of fact and conclusions of law to

support the action.

 

      Section 6. Judicial Review. Judicial

review of a final order resulting from an emergency hearing shall comply with

KRS 13B.140, 13B.150, 13B.160, and 311.593. (39 Ky.R. 664; Am. 1662; eff. 3-4-2013.)