201 KAR 25:051. Procedure for complaints and hearings involving licensees.

      RELATES TO: KRS 311.490

      STATUTORY AUTHORITY: KRS 311.410(4)

      NECESSITY, FUNCTION, AND CONFORMITY: To establish the administrative adjudication procedure for all proceedings before the board.

      Section 1. Scope and Definitions. (1) These administrative regulations govern the procedure for the Kentucky State Board of Podiatry in all proceedings before the board in which the legal rights, duties, or privileges of any person is required by statute or by these administrative regulations to be determined after an opportunity for a hearing.

      (2) The following definitions shall apply for purposes of administrative adjudicatory procedure unless the context otherwise requires:

      (a) "Party" means any person or agency named or admitted as a party to any proceedings of the board and shall include only persons who have a real interest in a matter before the board.

      (b) "Person" means any individual, partnership, corporation, association, or public or private organization of any character other than an agency.

      (c) "Order" means the whole or any part of a final disposition of an adjudication.

      (d) "Contested case" means an adjudicatory proceeding before the board in which the legal rights, duties, or privileges of any person are required by law to be determined after an opportunity for a hearing, without regard to whether the proceeding is instituted by the board or by some other person.

      (e) "Board" means the Kentucky State Board of Podiatry.

      Section 2. Complaints and Investigations. (1) Complaints. A complaint may be made by the board or any person against the holder of a license by the filing of written charges with the board's offices. The board may require the complainant to make the complaint on a printed complaint form provided by the board. Any complaint or charge filed with the board shall be forwarded to the licensee involved and the licensee shall be given twenty (20) days to resolve the problem or to make a reply to the complaint.

      (2) Investigations. Upon the receipt of a complaint and following the expiration of the twenty (20) days provided for in subsection (1) of this section, the board or its appointed committee may cause an investigation to be made by an individual board member, by any investigation committee, or by any agent or representative appointed by the board. The board may also cause an investigation to be made on its own initiative at any time without a complaint.

      Section 3. Commencement of Adjudicatory Proceedings. Upon completion of the investigation referred to in Section 2(2) of this administrative regulation or after the expiration of the twenty (20) day period referred to in Section 2(1) of this administrative regulation where an investigation is not made or whenever the board has completed an investigation made on its own initiative, the board may begin formal adjudicatory proceedings in accordance with the following procedure:

      (1) If it is determined that the facts alleged in the complaint or obtained from the investigation constitute grounds for disciplinary action against a licensee, a hearing shall be scheduled before the board on these allegations. In any case in which the board has denied an application for a license or failed to renew a license, a hearing shall only be scheduled upon receipt by the board of a written request submitted by or on behalf of the person whose application for license was denied or not renewed.

      (2) Notice. The notice of hearing shall be issued by the chairman of the board and shall state:

      (a) The time, date, and place of the hearing;

      (b) The legal authority under which the hearing is to be held;

      (c) The statutes or administrative regulations involved; and

      (d) A short and plain statement of the complaint or charges which are being preferred and the remedy which is being sought.

      The notice shall be served by certified mail to the last known address of the party or parties not less than twenty (20) days before the date of the hearing.

      (3) Appearance and service. In any contested case, the parties to the proceeding shall have the right to appear personally at the hearing, to be represented by counsel, to cross-examine witnesses appearing against them, and to produce witnesses on their own behalf. When a party has appeared by an attorney, or otherwise designated an attorney as his representative, all communications, notices, orders, or other correspondence shall be served on such attorney; service on the attorney shall be considered as service on the party and the board shall be notified of any change in such attorney by the party.

      (4) Hearing tribunal. Any member or members of the board who participated in the investigation of a complaint or charge against a licensee shall not sit on the board for adjudicatory purposes in connection with the same complaint or charge investigated. The chairman of the board or a hearing officer designated by the board shall preside over the hearing proceedings.

      Section 4. Conduct of Hearings; Witnesses; Burden of Proof; Evidence. (1) The board may hear testimony of any person who has information to offer bearing on the subject matter of such hearings. The board may ask any witness questions as may be required for a full and true disclosure of the facts.

      (2) A hearing in a contested case involving possible disciplinary action against a licensee, shall proceed in the following order unless the board otherwise directs:

      (a) The party filing the complaint or preferring the charges or the persons appointed or designated to present the evidence against the license may briefly state the substance of the charges and the evidence by which he expects to sustain them.

      (b) The party against whom a complaint has been filed or charges otherwise preferred may briefly state the substance of his defense and the evidence which he expects to offer in support of it.

      (c) The party filing the complaint or otherwise preferring the charges or the person(s) appointed or designated to present the evidence against the licensee shall have the burden of proof by a preponderance of the evidence and shall produce his evidence first; the party against whom a complaint has been filed or charges preferred may then produce his evidence. The board may alter the order of proof in any proceeding.

      (d) The parties shall then be confined to rebuttal evidence, unless the board, in its discretion, permits them to offer additional evidence in chief.

      (e) The parties may then submit the matter to the board for decision, or present oral arguments on the issues involved. In the arguments, the party filing the complaint or otherwise preferring the charges or the person appointed or designated to present the evidence against the licensee shall have the conclusion and the party against whom the complaint was filed or charges otherwise preferred shall have the opening.

      (3) In a hearing requested in writing by a person whose application for a license has been denied or not renewed, the burden of proof and order of proceedings delineated in subsection (2) of this section shall be reversed.

      (4) In any contested case, the board shall as far as practical adhere to the following rules of evidence:

      (a) Any evidence which would be admissible by circuit courts of the Commonwealth of Kentucky, shall be admitted in hearings before the board; evidence which would not be admissible by circuit courts of the Commonwealth of Kentucky may be admitted if the board deems it necessary for a full and true disclosure of the facts and the evidence would be of assistance to the board in determining the rights of the parties.

      (b) Every party shall have the right to present oral testimony, documentary evidence, exhibits, and rebuttal evidence and conduct cross-examination as may be required for a full and true disclosure of the facts.

      (c) Irrelevant, immaterial, or unduly repetitious evidence may be excluded and the board shall give effect to the rule of privilege recognized by the laws of the Commonwealth of Kentucky.

      (d) The board may take notice of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the board's specialized knowledge; provided, however, the parties shall be afforded an opportunity to contest any facts noticed.

      (e) Objections to evidentiary offers may be made and shall be noted in the record.

      (f) When necessary to ascertain facts which cannot otherwise be proved, evidence not admissible under these administrative regulations may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.

      (5) The parties to any hearing may agree to waive any of the procedural steps which would otherwise precede the reaching of a final decision by the board, but such waiver shall not be binding on the board.

      Section 5. Deliberations; Records; Final Order. (1) Deliberations. During any hearing and after the case has been submitted to the board for final decision, the deliberations of the board shall be governed by the following principles:

      (a) Ex parte investigations. Members of the board shall not, once a hearing has commenced, consult with any person or party in connection with any issue of fact or law, except upon notice and opportunity for all parties to participate; provided, however, that any board member may consult with other members of the board, and may have the aid and advice of one (1) or more personal assistants, including the assistance of counsel.

      (b) Separation of functions. No member, officer, or employee of the board who is engaged in the performance of investigative or prosecuting functions for the board in a contested area shall, in that or a factually related case, participate or advise in the decision, except as a witness or counsel in the public hearing.

      (c) Examination of evidence. The board shall personally consider the whole record or such portions of the record as may be cited by the parties, and the board's technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

      (d) The board may recess a hearing for the taking of additional discovery and evidence as required.

      (2) Record. The record shall include all pleadings, motions, exhibits, documentary, and testimonial evidence received or considered, a statement of matters officially noticed, and questions and offers of proof and rulings by the board A recording of the oral proceedings shall be made by the board, but a written transcript shall not be required. Any party requesting a written transcript of the oral proceedings shall pay for the transcription and the copy.

      (3) Final order. The final decision in any case in which a hearing is required or requested shall be in writing and shall be made a part of the record. The final decision shall include findings of facts and conclusions of law and shall be signed by the president of the board. (9 Ky.R. 78; eff. 8-11-82; Am. 20 Ky.R. 2660; eff. 5-18-95.)