††††† 201 KAR 35:060. Complaint procedure.

 

††††† RELATES TO: KRS 309.0805(1), 309.0813(7), (11), (13), 309.086

††††† STATUTORY AUTHORITY: KRS 309.0813(6)

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 309.086 authorizes the board to revoke, suspend, place on probation, or restrict a certificate holder and delineates the causes for which disciplinary action may be taken against a certificate holder. This administrative regulation establishes procedures for the filing, evaluation, and disposition of administrative complaints.

 

††††† Section 1. Definitions. (1) "Chair" means the chairman or vice-chairman of the board.

††††† (2) "Charge" means a specific allegation contained in a formal complaint, as established in subsection (5) of this section, issued by the board alleging a violation of a specified provision of KRS Chapter 309, the administrative regulations promulgated thereunder, or another state or federal statute or regulation.

††††† (3) "Complaint" means a written allegation of misconduct by a credentialed individual or another person, alleging a violation of:

††††† (a) KRS Chapter 309;

††††† (b) Administrative regulations promulgated in accordance with KRS Chapter 309;

††††† (c) Another state or federal statute or regulation; or

††††† (d) A combination of paragraphs (a), (b) or (c).

††††† (4) "Complaint screening committee" means a committee consisting of up to two (2) members of the board appointed by the chair to review complaints, investigative reports, and to participate in informal proceedings to resolve a formal complaint. In addition to board members, the executive director of the Division of Occupations and Professions or another staff member may be appointed to assist the committee, but shall not have voting privileges.

††††† (5) "Formal complaint" means a formal administrative pleading authorized by the board, which establishes charges against a certificate holder or another and commences a formal disciplinary proceeding pursuant to KRS Chapter 13B or requests the court to take criminal or civil action.

††††† (6) "Informal proceedings" means the proceedings instituted at any stage of the disciplinary process with the intent of reaching a dispensation of a matter without further recourse to formal disciplinary procedures under KRS Chapter 13B.

††††† (7) "Investigator" means an individual designated by the board to assist the board in the investigation of a complaint or an investigator employed by the Attorney General or the board.

 

††††† Section 2. Receipt of Complaints. (1) A complaint:

††††† (a) May be submitted by an:

††††† 1. Individual;

††††† 2. Organization; or

††††† 3. Entity;

††††† (b) Shall be:

††††† 1. In writing; and

††††† 2. Signed by the person offering the complaint; and

††††† (c) May be filed by the board based upon information in its possession.

††††† (2)(a) Upon receipt of a complaint, a copy of the complaint shall be sent to the individual named in the complaint along with a request for that individualís response to the complaint.

††††† (b) The individual shall be allowed a period of twenty (20) days from the date of receipt to submit a written response.

††††† (3)(a) Upon receipt of the written response of the individual named in the complaint, a copy of the response shall be sent to the complainant.

††††† (b) The complainant shall have seven (7) days from receipt to submit a written reply to the response.

 

††††† Section 3. Initial Review. (1) After the receipt of a complaint and the expiration of the period for the individualís response, the complaint screening committee shall consider the individualís response, complainantís reply to the response, and any relevant material available and make a recommendation to the board.

††††† (a) The names of the individuals and other identifying information shall be redacted to provide anonymity.

††††† (b) The board shall determine whether there is enough evidence to warrant a formal investigation of the complaint.

††††† (2) If the board determines before formal investigation that a complaint is without merit, it shall:

††††† (a) Dismiss the complaint; and

††††† (b) Notify the complainant and respondent of the boardís decision.

††††† (3) If the board determines that a complaint warrants a formal investigation, it shall:

††††† (a) Authorize an investigation into the matter; and

††††† (b) Order a report to be made to the complaint screening committee at the earliest opportunity.

 

††††† Section 4. Results of Formal Investigation; Board Decision on Hearing. (1) Upon completion of the formal investigation, the investigator shall submit a report to the complaint screening committee of the facts regarding the complaint.

††††† (a) The complaint screening committee shall review the investigative report and make a recommendation to the board.

††††† (b) The board shall determine whether there has been a prima facie violation of KRS Chapter 309 or the administrative regulations promulgated thereunder, and a complaint shall be filed.

††††† (2) If the board determines that a complaint does not warrant the issuance of a formal complaint, it shall:

††††† (a) Dismiss the complaint; and

††††† (b) Notify the complainant and respondent of the boardís decision.

††††† (3) If the board determines that a violation has occurred but is not serious, the board shall issue a written admonishment to the certificate holder.

††††† (a) A copy of the written admonishment shall be placed in the permanent file of the certificate holder.

††††† (b) The certificate holder shall have the right to file a response in writing to the admonishment within thirty (30) days of its receipt and may have it placed in a permanent file.

††††† (c) Alternatively, the certificate holder may file a request for a hearing with the board within thirty (30) days of the admonishment.

††††† (d) Upon receipt of the request, the board shall set aside the written admonishment and set the matter for hearing pursuant to the provisions of KRS Chapter 13B.

††††† (4) If the board determines that a complaint warrants the issuance of a formal complaint against the respondent counsel for the board, in conjunction with the complaint screening committee, shall prepare a formal complaint that states clearly the charge or charges to be considered at the hearing.

††††† (a) The formal complaint shall be reviewed by the board and, if approved, signed by the chair and served upon the individual as required by KRS Chapter 13B.

††††† (b) The formal complaint shall be processed in accordance with KRS Chapter 13B.

††††† (5) If the board determines that a person is in violation of KRS 309.0805(1), it shall:

††††† (a) Order the individual to cease and desist from further violations of KRS 309.0805(1); or

††††† (b) Initiate action in Franklin Circuit Court pursuant to KRS 309.0813(13) for injunctive relief to stop the violation of KRS 309.0805(1).

 

††††† Section 5. Settlement by Informal Proceedings. (1) The board, through counsel and the complaint screening committee, may at any time during this process, enter into informal proceedings with the individual who is the subject of the complaint for the purpose of appropriately dispensing with the matter.

††††† (2) An agreed order or settlement reached through this process shall be approved by the board and signed by the individual who is the subject of the complaint and the chair.

††††† (3) The board may employ mediation as a method of resolving the matter informally.

 

††††† Section 6. Notice of Service of Process. A notice required by KRS Chapter 309 or this administrative regulation shall be issued pursuant to KRS Chapter 13B.

 

††††† Section 7. Incorporation by Reference. (1) "Complaint Form", 2008, is incorporated by reference.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Board of Certification of Alcohol and Drug Counselors, 911 Leawood Drive, Frankfort, Kentucky, telephone (502) 564-3296, ext. 222, Monday through Friday, 8:30 a.m. to 5 p.m. (35 Ky.R. 461; 787; eff. 10-15-2008.)