Ala. Admin. Code r. 545-X-3-.03

Current through Register Vol. 43, No. 1, October 31, 2024

Section 545-X-3-.03 - Initiation Of A Contested Case; Notice And Opportunity For Hearing In Contested Cases; Contents Of Notice; Procedure Upon Failure Of Notified Party To Appear; Presentation Of Evidence And Argument; Right To Counsel; Disposition By Stipulation; Settlement; Contents Of Record; Public Attendance At Oral Proceedings; Recordings And Transcripts Of Oral Proceedings

(1) A contested case before the Medical Licensure Commission shall be initiated by the filing of a written administrative complaint signed by any member of the Alabama Board of Medical Examiners, any duly licensed physician, the executive officer of the Board or any other person and which alleges that the respondent may be guilty of one or more of the grounds for discipline of a license to practice medicine as provided in Code of Ala. 1975, § 34-24-360, and these rules and regulations.

(2) Any physician holding a certificate of qualification to practice medicine in Alabama shall and is hereby required to, and any other person may, report to the Board or the Commission any information such physician or other person may have which appears to show that any physician holding a certificate of qualification to practice medicine in Alabama may be guilty of any of the acts, offenses or conditions set out in Code of Ala. 1975, § 34-24-360; and any physician or other person who in good faith, makes such a report to the Board or to the Commission shall not be liable to any person for any statement or opinion made in such report.

(3) In a contested case for the discipline of a license instituted by the filing of an administrative complaint, all parties shall be afforded an opportunity for hearing after reasonable notice in writing. Such notice shall be delivered to the physician against whom the administrative complaint if filed by personal service required by § 34-24-361(e). Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceedings.

(4) The notice shall include:

(a) A statement of the time, place and nature of the hearing;

(b) A statement of the legal authority and jurisdiction under which the hearing is to be heard;

(c) A reference to the particular sections of the statutes and rules involved.

(5) In addition, the notice may include:

(a) A time deadline for the filing of an answer to the administrative complaint;

(b) A time deadline for the filing of all motions addressed to the sufficiency of the administrative complaint;

(c) A time deadline for the filing of all motions requesting prehearing relief;

(d) A time deadline for the complainant to furnish to the respondent a list of witnesses who are expected to offer testimony;

(e) A time deadline for the respondent to furnish to the complainant a list of witnesses who are expected to offer testimony;

(f) A time deadline for the complainant and the respondent to furnish to the Commission the name and full address of each witness residing in the State of Alabama who is requested to be subpoenaed for attendance at the hearing;

(g) A copy of the administrative complaint that has been filed before the Medical Licensure Commission in regard to the license of the physician and which contains a short and plain statement of the matters asserted. If the complainant is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.

(6) Upon receipt of the Notice of Hearing by the respondent, the respondent shall file an answer with the Commission which either admits or denies the allegations contained in the administrative complaint which was filed against the respondent before the Medical Licensure Commission. If the respondent fails to file an answer, a general denial shall be entered on behalf of the respondent and the allegations in the administrative complaint shall be deemed denied.

(a) If the respondent admits the allegations of the administrative complaint and those admissions indicate that the respondent is guilty of a violation of Code of Ala. 1975, § 34-24-360, then the hearing scheduled by the Medical Licensure Commission shall proceed on the question of appropriate punishment for the violation. At this hearing, all parties shall be afforded the opportunity to present evidence which is germane to the issue of appropriate punishment.

(b) If the answer filed by the respondent denies the allegations of the administrative complaint filed with the Medical Licensure Commission, then the hearing scheduled by the Commission shall proceed on the factual matters which are alleged in the administrative complaint.

(7) If a party fails to appear, or absents himself, in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of the party.

(8) Opportunity shall be afforded all parties to respond and present evidence and argument on all material issues involved and to be represented by counsel at their own expense.

(9) Unless precluded by statute, informal dispositions may be made of any contested case by stipulation, agreed settlement, consent order or default or by another method agreed upon by the parties in writing, subject to approval of the Commission.

(10) The record in a contested case shall include:

(a) All pleadings, motions, and intermediate rulings;

(b) All evidence received or considered and all other submissions; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information;

(c) A statement of all matters officially noticed;

(d) All questions and offers of proof, objections and rulings thereon;

(e) All proposed findings and exceptions;

(f) Any opinion or report by the legal counsel at the hearing; and

(g) All staff memoranda or data submitted to the legal counsel or members of the agency in connection with their consideration of the case unless such memoranda or data is protected as confidential or is recognized as privileged by laws of the state of Alabama; provided, if such memoranda or data contains information of a proprietary and confidential nature, it shall be protected by the Commission from public disclosure.

(h) Administrative complaints seeking to discipline the licenses to practice medicine of physicians and all orders of the Commission which are dispositive of the issues raised by such complaints shall be public record.

(11) Hearings on administrative complaints shall be closed. The record in such hearings, including witness testimony, exhibits and pleadings, shall be confidential and shall not be available for public inspection; provided, however, that all administrative complaints, and amendments thereto, and all orders of the Commission which are dispositive of the issues raised by such complaints, shall be public record.

(12) Oral proceedings shall be recorded either by mechanized means or by qualified shorthand reporters. Oral proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. The recording of stenographic notes of oral proceedings or the transcription thereof shall be filed with and maintained by the agency for at least five years from the date of decision and shall be made available for inspection by the public, except in those cases where hearings are closed, or where the proceedings shall be ordered sealed by order of court, or are required to be sealed by statute.

(13) An administrative complaint may be amended without leave of the Commission at any time more than 45 days before the first setting of the case for hearing. Thereafter, the Commission may permit the administrative complaint to be amended, but no amendments shall be permitted that are not germane to the acts, offenses or conditions originally charged or that materially alters the nature of any act, offense or condition charges; provided, however, that amendments to conform to the evidence may be allowed in conformance with Rule 15(b), Alabama Rules of Civil Procedure.

(14) Findings of fact shall be based solely on the evidence in the record and on matter officially noticed in the record.

(15) The Commission shall not order the suspension or revocation of a license unless at least five members of the Commission are present and a majority of those present vote for such suspension or revocation.

Ala. Admin. Code r. 545-X-3-.03

Filed May 6, 1983. Repealed and new rule adopted in lieu thereof: Filed May 1, 1984. Amended: Filed March 4, 2003; effective April 8, 2003. Amended: Filed May 5, 2010; effective June 9, 2010.

Amended by Alabama Administrative Monthly Volume XXXVII, Issue No. 03, December 28, 2018, eff. 1/24/2019.

Authors: Wayne P. Turner, Wallace D. Mills

Statutory Authority:Code of Ala. 1975, §§ 34-24-361, 34-24-361.1, 34-24-366, 41-22-12.