Ala. Admin. Code r. 545-X-3-.08

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

Section 545-X-3-.08 - Appointment And Authority Of Hearing Officer And Legal Counsel; Grounds For Suspension Or Revocation Of License

(1) The Commission may appoint, from time to time, a hearing officer for the purposes of presiding over and conducting contested case hearings before the Commission and issuing pre-hearing rulings as may be necessary to the orderly conduct of said cases. The hearing officer shall be an attorney licensed to practice law in the state of Alabama. The Commission's hearing officer shall not have participated in the investigation or prosecution of the licensee in the matters pertaining to the contested case. The hearing officer shall not have a manifest conflict of interest with any party in a contested case. The general duties of the hearing officer shall be to preside over and direct the course of contested cases before the Commission, Specifically, the hearing officer is empowered to:

(a) Issue procedural orders setting dates, deadlines, and timetables by which parties must submit or disclose evidentiary material or notices related to the orderly conduct of a contested case. Hearing dates shall be set by the Chairman. The hearing officer may grant continuances or postponements of hearings on contested cases upon the assent of the Chairman.

(b) To issue subpoenas, protective orders, and discovery orders on behalf of the Commission upon application of a party. The hearing officer may impose reasonable conditions and limitations on discovery in a contested case through limited written interrogatories, document production, and depositions as may be allowed by the Alabama Administrative Procedures Act.

(c) To impose reasonable conditions and limitations on the parties' presentations during a contested case including, but not limited to: the prescribing of reasonable limitations on argument, prescribing the length of time allotted for the presentation of a parties' case, directing that evidence relevant to the general character and reputation of the licensee be submitted in writing by affidavit or to place reasonable limitations upon the number of witnesses permitted to testify as to the character and reputation of the licensee, and/or requiring the parties to submit brief or memoranda on issues put before the Commission.

(d) To issue orders and rulings related to the attendance of parties, attorneys, and witnesses at hearings and conferences.

(e) To hold and preside over pre-hearing conferences of parties and/or attorneys as may be necessary to the orderly conduct of a contested case.

(f) To issue orders and rulings on all other matters of procedure and law necessary to the orderly conduct of the contested case In ruling on motions or objections contesting the legal sufficiency of an administrative complaint or notice given under the Alabama Administrative Procedures Act, the hearing officer may order the complainant to file a more definite statement. Dismissal of a complaint will only be upon the order of the Commission.

(g) To administer oaths and to certify the authenticity of documents when required in the discharge of their duties as hearing officer in a contested case.

(2) Legal counsel is an individual appointed by the Commission to act in such capacities and with such authority as is specified herein. Legal counsel shall be an attorney licensed to practice law in the state of Alabama. The legal counsel shall be compensated at a rate to be prescribed by the Commission for services actually performed pursuant to a contractual agreement. Subject to the restrictions concerning participation in prosecution and conflict of interest, a legal counsel may be an employee of the Commission. The general duties of the legal counsel shall be to advise the Commission on matters of law and evidence pertaining to contested cases and issues before the Commission and to assist the Commission in the preparation of orders, communications, opinions and decrees.

(a) The legal counsel is specifically authorized to represent the Commission in all matters involving the Commission in state and federal courts. The legal counsel is specifically authorized to represent the Commission in all appeals from its decisions and orders.

(b) The legal counsel shall advise the Commission on matters of evidence and law during its deliberations.

(c) When directed by the Commission, the legal counsel shall prepare the final order reflecting the decision of the Commission in each contested case. The final order shall be executed and authenticated in the manner prescribed by the Commission.

(d) The legal counsel shall draft and advise the Commission on rules changes as directed by the Commission.

(e) In addition, the legal counsel shall be authorized to perform such duties and functions as may be prescribed by the Commission, it being the intent of this rule that the legal counsel shall be the chief legal advisor to the Commission. The Commission's legal counsel shall not have participated in the investigation or prosecution of the licensee in the matters pertaining to the contested case. The legal counsel shall not have a manifest conflict of interest with any party in a contested case.

(3) Where no hearing officer is appointed by the Commission, the Chairman of the Commission shall preside during hearings with the assistance and advice of legal counsel and perform all other duties of the hearing officer.

(4) All evidence and argument shall be presented before the Commission and no member of the Commission shall participate in the final decision unless he has been present during all of the hearing or unless he has considered the complete record of those proceedings which took place in his absence.

(5) All rulings of the hearing officer or Chairman, where no hearing officer is appointed, or the Chairman's designee shall be final and shall be deemed to be the action of the Commission unless such rulings are challenged by a member of the Commission. All such challenges are to be considered and decided by the Commission outside the presence of the parties, attorneys and witnesses to the contested case, and only the decision of the Commission shall be entered into the record. The Chairman is specifically authorized to require that any person whose behavior is disruptive to the orderly conduct of the proceedings leave the hearing and may then order the proceedings to continue or to be postponed as circumstances shall dictate.

(6) During the conduct of any contested case the members of the Commission may direct questions to witnesses who testify before the Commission.

(7) The hearing shall be conducted in so far as is practicable in the same manner as a civil action at law. In a hearing the complainant shall have the obligation to proceed first and to present such evidence touching upon the specific allegations of the complaint as will establish at least a prima facia violation of the offenses and conditions as stated in the complaint. At the conclusion of the complainant's presentation, the respondent shall have the opportunity to call witnesses on his or her behalf and to rebut the allegations of the complainant and/or to present evidence in mitigation of the evidence presented by the complainant. At the completion of Respondent's case, Complainant shall be allowed to call witnesses or submit evidence to rebut facts or issues raised by Respondent.

(8) At the conclusion of the hearing, the Commission shall hold its deliberations in executive session in consultation with the legal counsel. If the Commission finds that a physician is guilty of any of the acts, offenses or conditions enumerated in § 34-24-360, the Commission may take any of the following actions or any combination of the following action:

(a) Enter a judgment and impose a penalty, which penalty may include revoking, suspending, or restricting a license to practice medicine, issuing a reprimand, issuing a non-disciplinary citation, imposing a fine, or any combination thereof;

(b) Suspend imposition of judgment and penalty;

(c) Impose judgment and penalty, but suspend enforcement thereof by placing the physician on probation, which probation shall be revocable if the Commission finds that the conditions of the probation order are not followed by the physician.

(i) As a condition of probation the Commission may require the physician to submit to care, counseling, or treatment by a healthcare professional designated by the Commission. The expense of such care, counseling or treatment shall be borne by the physician on probation.

(ii) The Commission may at any time modify the conditions of the probation and may include among them any reasonable condition for the purpose of the protection of the public or for the purpose of the rehabilitation of the probationer or both.

(d) Impose a fine on the respondent in an amount not greater than ten thousand dollars ($10,000.00) for each violation of '34-24-360 or any rule or regulation of the Commission which relates to '34-24-360.

(i) All administrative fines assessed by the Commission shall be due and payable to the Commission within thirty (30) days from the date the fine is assessed, unless otherwise provided for by order of the Commission. In the event that an appeal is filed subject to '34-24-357, Code of Ala. 1975, then the fine shall be required to be paid. However, the Commission shall refund the fine in the event the decision of the Commission is reversed by the final judgment of the reviewing court.

(ii) The Commission shall not renew the annual certificate of registration as set forth in Section 34-24-337 of any physician against whom an administrative fine has been assessed by the Board of Medical Examiners or the Commission until such fine is paid in full. However, if an order of the Medical Licensure Commission or the Board of Medical Examiners allows for the payment of the fine or costs in installments and if the licensee is current with the installment payment, then the physician shall be permitted to renew his or her certificate of registration. In the event that the fine is paid more than thirty-one (31) days after registration is due, the licensee shall be required to pay the reinstatement fee and complete all forms as provided by these rules.

(iii) All administrative fines received by the Commission shall be deposited in an escrow account and held until all proceedings seeking review of the Commission's order have concluded. At the conclusion of these proceedings or after the statutory period for filing an appeal has lapsed, all fines paid to the Commission shall be deposited with the Board of Medical Examiners for use as provided by statute and by the rules and regulations of the Alabama State Board of Medical Examiners.

(9) Administrative Costs: in addition to the administrative fine authorized in subsection (d), the Commission, upon application by the Board of Medical Examiners, may require a physician found to be in violation of Section 34-24-360 to pay the costs, fees, and expenses of the Board incurred in connection with any proceedings before the Commission. Such costs include, but are not limited to the following;

(a) The actual cost of independent medical review and expert testimony.

(b) Fees and expenses of board counsel.

(c) Deposition costs.

(d) Travel expenses for board staff.

(e) Charges incurred for obtaining documentary evidence, and such other categories of expenses as may be prescribed in regulation published by the Board and Commission.

(10) Payment of any costs, fees, or expenses ordered by the Commission shall be made and enforced in the same manner as an administrative fine, as set forth in the preceding section. The following procedures shall be followed with the regard to requests for costs, fees and expenses:

(a) If the Board intends to seek the imposition of costs, fees and expenses, it shall give notice of such intent prior to the commencement of the final hearing. Such notice may be included in the Administrative Complaint, or it may be given by separate pleading filed with the Commission, a copy of which shall be served on the licensee or his/her attorney.

(b) Unless otherwise ordered by the Commission, the Board shall submit to the Commission, within thirty days after the conclusion of the final hearing, a complete bill of costs, fees and expenses. Such bill of costs, fees and expenses shall include a verification by the General Counsel of the Alabama Board of Medical Examiners, that the costs, fees, and expenses were necessary for the prosecution of the case. A copy of such bill of costs, fees and expenses shall be served upon the licensee or his/her attorney.

(c) The licensee may file written objections to the bill of costs, fees and expenses within ten days of service thereof. Such objection shall be set forth in detail the basis for such objection. If no objection if filed, the Commission may assume that the costs, fees and expenses requested are necessary and reasonable.

(d) In determining whether or not to award cost, fees and expenses, the Commission shall determine whether or not such cost, fees and expenses are reasonable and necessary for the prosecution of the case. Attorney fees shall be awarded at a rate not to exceed $150.00 per hour for the Board's in-house counsel. Attorney fees for outside counsel shall be awarded at a rate not to exceed the contract rate set out in the contract between the Board and said counsel.

(e) The Commission may include its ruling on the request for costs, fees and expenses in its final order. In the alternative, the Commission may enter a final order and reserve for a later time the issue of costs, fees and expenses. The fact that the issue of costs, fees and expenses is reserved for a later ruling shall not affect the finality of the order.

(11) If a license to practice medicine in Alabama is suspended or revoked, the holder of that license shall not practice in Alabama during the term of the suspension or revocation.

(12) If the Commission finds that the physician is not guilty of any of the acts, offenses or conditions enumerated in § 34-24-360, it shall issue a judgment setting out such findings and dismiss the administrative complaint.

(13) When the issue is whether or not a doctor is competent or physically or mentally capable of practicing medicine with reasonable skill and safety to patients, then, upon a showing of probable cause to the Commission that the doctor is not competent or capable of practicing medicine with reasonable skill and safety to patients, the Commission may order and direct the doctor in question to submit to physical, mental, laboratory, or diagnostic examination or testing or any combination of such examinations or testing to be performed by a physician or other healthcare professional designated by the Commission. The expense of such examination shall be borne by the physician who is so examined.

(14) Every physician licensed to practice medicine in Alabama who accepts the privilege of practicing medicine in Alabama by actually practicing or by the making and filing of an annual registration to practice medicine shall be deemed to have given his consent to submit to a mental, physical or laboratory examination or to any combination of such examination and to waive all objections to the admissibility of the examining health care professional's testimony or examination reports on the ground that they constitute privileged doctor-patient communications.

(15) The Commission shall have the power and duty to suspend, revoke or restrict any license to practice medicine in the State of Alabama or place on probation or fine any licensee, whenever the licensee shall be found guilty on the basis of substantial evidence of any of the following acts or offenses:

(a) Fraud in applying for or procuring a certificate of qualification to practice medicine or a license to practice medicine in this State;

(b) Unprofessional conduct as defined by statute or by these rules and regulations promulgated by the Commission;

(c) Practicing medicine in such a manner as to endanger the health of the patients of the practitioner;

(d) Conviction of a felony; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;

(e) Conviction of any crime or offense which reflects the inability of the practitioner to practice medicine with due regard for the health or safety of his patients; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;

(f) Conviction for any violation of a federal or state law relating to controlled substances; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;

(g) Use of any untruthful or deceptive or improbable statement concerning the licensee's qualifications or effects or results of his proposed treatment;

(h) Distribution by prescribing, dispensing, furnishing, or supplying of controlled substances to any person or patient for any reason other than a legitimate medical purpose;

(i) Gross malpractice or repeated malpractice or gross negligence in the practice of medicine;

(j) Division of fees or agreement to split or divide the fees received for professional services with any person for bringing or referring a patient;

(k) Performance of unnecessary diagnostic tests or medical or surgical services;

(l) Charging fees determined by the Commission to be grossly excessive or intentionally filing or causing to be filed false or fraudulent claims, as defined by the Commission, for medical or surgical services to any private or government third party payor having a legal or contractual obligation to pay such claims on behalf of a patient;

(m) Aiding or abetting the practice of medicine by any person not licensed by the Commission;

(n) Conviction of fraud in filing Medicare or Medicaid claims or conviction of fraud in filing claims to any third-party payor; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence;

(o) Any disciplinary action taken by another state against a license to practice medicine, based upon acts by the licensee similar to acts described in this section; a certified copy of the record of the disciplinary action of the state making such an action is conclusive evidence thereof;

(p) Refusal to appear before the Board of Medical Examiners after having been formally requested to do so in writing by the Executive Director of the Board;

(q) Making any fraudulent or untrue statement to the Commission or to the Board of Medical Examiners;

(r) The termination, revocation, probation, restriction, denial, failure to renew, suspension, reduction or resignation of staff privileges of a licensee by a hospital in this or any other state when such action is related to negligence or incompetence in the practice of medicine, moral turpitude, sexual misconduct, abusive or disruptive behavior, or drug or alcohol abuse;

(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, inebriation, excessive use of drugs, narcotics, alcohol, chemicals or any other substance, or as a result of any mental or physical condition.

(i) When the issue is whether or not a doctor is competent or physically or mentally capable of practicing medicine with reasonable skill and safety to patients, then, upon a showing of probable cause to the Commission that the doctor is not competent or capable of practicing medicine with reasonable skill and safety to patients, the Commission may order and direct the doctor in question to submit to physical, mental, laboratory, or diagnostic examination or testing, or any combination of such examinations or testing, to be performed by a physician or other healthcare professional designated by the Commission or by the Board of Medical Examiners. The expense of such examination shall be borne by the physician who is so examined.

(ii) Every physician licensed to practice medicine in the State of Alabama who accepts the privilege of practicing medicine in Alabama by actually practicing or by the making and filing of an annual registration to practice medicine shall be deemed to have given his or her consent to submit to a mental, physical, laboratory, or diagnostic examination or testing, or to any combination of such examinations or testing, and to waive all objections to the admissibility of the examining physician's or healthcare professional's testimony, examination reports, or diagnostic reports on the ground that they constitute privileged doctor-patient communications.

(iii) Upon certification by the Board of Medical Examiners that a physician has failed to comply with an order of the Board of Medical Examiners issued pursuant to Code of Ala. 1975, Section 34-24-360(19)(d) the Commission shall summarily suspend such physician's license. Such suspension shall continue in effect until such time as the physician complies with the order of the Board or the order is withdrawn by the Board or the order is terminated by the Commission after a hearing.

(iv) All reports, records, and documents obtained by the Board pursuant to an order authorized by section 34-24-360(19)(d) and introduced as evidence in any hearing conducted by the Commission are privileged and confidential and shall not be public records nor available for court subpoena or for discovery proceedings.

(v) A physician whose license to practice medicine has been suspended by the Commission under the authority of subparagraph (iii) above may obtain judicial review in accordance with the provisions of Sections 41-22-20 and 34-24-367.

(t) Being unable to practice medicine with reasonable skill and safety to patients by reason of a demonstrated lack of basic medical knowledge or clinical competency.

(i) Upon certification by the Board of Medical Examiners that a physician has failed to comply with an order of the Board of Medical Examiners issued pursuant to Code of Ala. 1975, Section 34-24-360(20)(a) the Commission shall summarily suspend such physician's license. Such suspension shall continue in effect until such time as such physician complies with the order of the Board or the order is withdrawn by the Board or the order is terminated by the Commission after a hearing.

(ii) A physician whose license to practice medicine has been summarily suspended under the authority of subparagraph 2. above may obtain judicial review in accordance with the provisions of Sections 41-22-20 and 34-24-367.

(iii) Any physician whose certificate of qualification and license to practice medicine has been restricted by the Board of Medical Examiners under the authority of Code of Ala. 1975, Section 34-24-360(20)(e) may request a hearing before the Commission. At such hearing it shall be the burden of the Board to demonstrate to the reasonable satisfaction of the Commission that the restriction or restrictions are consistent with the findings of the examination or evaluation ordered by the Board pursuant to Code of Ala. 1975, Section 34-24-360(20)(b). All such hearings shall be conducted on an expedited basis and any restrictions ordered by the Board shall not be stayed by the Commission during the pendency of the hearing. The Commission may consider, in any hearing resulting from a decision of the Board to impose a restriction or restrictions on the certificate of qualification and license to practice medicine of the physician in question, the results of all examinations or evaluations of basic knowledge or clinical competency upon which the Board relied and such other evidence as the Commission deems relevant to the issues presented. In rendering a decision, the Commission is authorized to affirm the restriction or restrictions, to modify the restriction or restrictions, or to order the removal of the restriction or restrictions.

(iv) A physician adversely affected by a decision of the Commission resulting from a hearing under the preceding subparagraph (iii) may obtain judicial review in accordance with the provisions of Sections 41-22-20 and 34-24-367.

(v) The Commission may, within its discretion, revoke or suspend the license to practice medicine of a physician who fails to abide by or who violates a restriction or restrictions imposed by the Board, or as modified by the Commission, on the certificate of qualification and license to practice medicine of the physician in question, or it may impose administrative fines or other penalties as authorized by Sections 34-24-361 and 34-24-381.

(u) Excessive prescribing, dispensing, furnishing or supplying of a schedule II controlled substance. A physician violates this section if he or she prescribes, orders, dispenses, administers, supplies or otherwise distributes any Schedule II amphetamine or Schedule II amphetamine like anorectic drug or Schedule II sympathomimetic amine drug or compound thereof, or any salt, compound, isomer, derivative or preparation of the foregoing which are chemically equivalent thereto, or other nonnarcotic Schedule II stimulant drug, which drugs or compounds are classified under schedule II of the Alabama Uniform Controlled Substances Act, Section 20-2-24, to any person except for the therapeutic treatment of:

(i) Narcolepsy.

(ii) Hyperkinesis.

(iii) Brain dysfunction of sufficiently specific diagnosis or etiology which clearly indicates the need for these substances in treatment or control.

(iv) Epilepsy.

(v) Differential psychiatric evaluation of clinically significant depression; provided, however, that such treatment shall not extend beyond a period of 30 days unless the patient is referred to a licensed practitioner specializing in the treatment of depression.

(vi) Clinically significant depression shown to be refractory to other therapeutic modalities; provided, however, that such treatment shall not extend beyond a period of 30 days unless the patient is referred to a licensed practitioner specializing in the treatment of depression; or for the clinical investigation of the effects of such drugs or compounds, in which case an investigative protocol must be submitted to and reviewed and approved by the State Board of Medical Examiners before the investigation has begun.

(v) A physician prescribing, ordering or otherwise distributing the controlled substances listed above in the manner permitted by subsection (u) above shall maintain a complete record which must include documentation of the diagnosis and reason for prescribing, the name, dose, strength, and quantity of the drug, and the date prescribed or distributed. The records required under this subsection shall be made available for inspection by the certifying board or its representative upon request. Those Schedule II stimulant drugs enumerated above shall not be dispensed or prescribed for the treatment or control of exogenous obesity.

(w) Failure to maintain for a patient a medical record which meets the minimum standards stated in the rules and regulations promulgated by the Commission.

(x) The violation of '34-24-57, Code of Ala. 1975, in that the licensee, who, during the preceding three (3) year period has had two or more final judgments or settlements, or has had a total of three or more final judgments or settlements, or both, resulting from a claim or action for damages for personal injuries caused by an error, omission or negligence in the performance of medical professional services, or in the performance of medical professional services without consent.

(y) Practicing medicine in violation of the provisions of the Infected Health Care Worker Management Act, Act 93- 846.

(z) Failure to comply with any rule of the Board of Medical Examiners or Medical Licensure Commission.

Ala. Admin. Code r. 545-X-3-.08

Filed May 6, 1983. Repealed and new rule adopted in lieu thereof: Filed May 1, 1984. Amended: Filed September 25, 1986. Amended: Filed January 26, 1994; effective March 3, 1994. Amended: Filed March 4, 2003; effective April 8, 2003. Amended: Filed April 29, 2005; effective June 3, 2005. Amended: Filed April 28, 2006; effective June 2, 2006. Amended: Filed November 30, 2007; effective January 4, 2008. Amended: Filed May 5, 2010; effective June 9, 2010. Amended: Filed April 5, 2011; effective May 10, 2011.

Amended by Alabama Administrative Monthly Volume XXXIII, Issue No. 03, December 31, 2014, eff. 12/31/2014.

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

Amended by Alabama Administrative Monthly Volume XL, Issue No. 01, October 29, 2021, eff. 12/13/2021.

Authors: Alabama Board of Medical Examiners, Wallace D. Mills

Statutory Authority:Code of Ala. 1975, §§ 34-24-57, 34-24-360, 34-24-381, 34-24-382.