201 KAR 42:050. Complaint procedure and disciplinary action.


      RELATES TO: KRS 309.351, 309.355(1), (2), (6), 309.362


      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 309.362.


      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 profession; or

      (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 201 KAR Chapter 42.

      (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.

      (4) The board shall use the procedures established in this subsection to redact an initiating complaint.

      (a) A copy of an initiating complaint may be redacted of personal names, personal identification numbers, and personal contact information upon recommendation of the complaint committee and consent by majority vote of the full board. The board shall keep the original initiating complaint free of redactions and store the document in the complaint case file.

      (b) The board may send a redacted copy of an initiating complaint to the respondent to meet the requirements of subsection (1) of this section. The original initiating complaint that is free of redactions may be viewed by the respondent upon written request submitted to the board. The original copy of the initiating complaint that is free of redactions shall not be released to the respondent or the public until final disposition of the matter.


      Section 4. (1) The complaint committee shall:

      (a) Review the initiating complaint and the response filed by the respondent at its next meeting; and

      (b) Recommend one (1) of the following options to the board at the board’s next meeting:

      1. Dismissal;

      2. Further investigation;

      3. Issuance of a formal complaint; or

      4. Referral to another government agency.

      (2) 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 complaint.

      (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 board shall:

      (1) Resolve the case informally by agreed order; or

      (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 Chapter 13B.

      (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 board.

      (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.

      (4) The board may request recovery of administrative costs and fees incurred by the board in processing, investigating, or administering a complaint to be paid by a respondent. The request shall be submitted by motion to an administrative hearing officer assigned under KRS 13B.080 to preside over a KRS Chapter 13B hearing of the complaint. The request may also be made to a circuit court judge presiding over an action for injunction filed by the board pursuant to KRS 309.355(6).


      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,, Monday through Friday, 8:00 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; 42 Ky.R. 1594; 2055; eff. 2-5-2016.)