Ala. Admin. Code r. 545-X-3-.16

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

Section 545-X-3-.16 - Probation Compliance Hearings

(1) If a final order of the Commission in a contested case suspends the implementation of the penalty, or any portion thereof, and the physician's license is placed on probationary status, the Commission may, from time to time, hold a probation compliance hearing for the limited purpose of determining whether any restrictions or terms of the probation have been violated.

(2) In a probation compliance hearing, the probationer shall be afforded an opportunity to be heard after reasonable notice in writing. Notice shall be served on the probationer in the same manner as provided for in § 34-24-361(e) of the Code of Ala. 1975, at least 20 days prior to the date set for the hearing and shall include:

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

(b) citation to the restriction or term of probation in the final order which the probationer is accused of violating;

(c) a statement of the legal authority under which the hearing is to be held.

(3) The notice may contain any and all of the items listed in Rule 545-X-3-.03(5) above as well as copies of any and all reports, data, test results, or communications which tend to show that the probationer may have violated the restrictions or terms of probation.

(4) A copy of the notice shall be served on the Alabama Board of Medical Examiners concurrently with service on the probationer. The Board shall have the right to intervene as a complainant at any time prior to the hearing date. If the Board elects to intervene, the Board shall notify the probationer and the Commission by filing a petition to intervene as complainant with the Commission, which shall serve a copy of the petition on the probationer. Upon filing such a petition, the Board shall have the right to appear through counsel, call witnesses, present evidence and argument, cross examine any witnesses giving testimony before the Commission, and make recommendations to the Commission.

The Board shall be limited to the subject matter identified in the notice unless it alleges additional violations of the Commission's probation order in the petition to intervene. In no instance shall the Board be permitted to prosecute additional violations of the probation order unless notice has been provided to the probationer at least ten (10) days prior to the date set for the hearing. Nothing in this rule shall be construed to prohibit, preclude, or limit the Board's authority to file an administrative complaint with the Commission under applicable law and regulations.

(5) In a probation compliance hearing, a probationer shall be afforded the opportunity to be heard by the Commission, to call witnesses, present evidence and argument, and to cross examine any witness giving testimony before the Commission, all as allowed for the Alabama Administrative Procedures Act, § 41-22-1, et. seq. of the Code

of Ala. 197 5. A probationer may be represented by counsel at said probation compliance hearing.

(6) Witnesses may be subpoenaed to testify at or supply evidence for a probation compliance hearing by either the Commission or the probationer in the same manner prescribed in Rule 545-X-3-.05 above.

(7) The rules of evidence in a probation compliance hearing shall be as set out in § 41-22-13 of the Code of Ala. 1975, and Section 545-X-3-.09 above.

(8) If the Commission finds that the probationer has violated a restriction or term of probation, the Commission may enter an order, which shall be public record, either:

(a) Revoking Probationer's probation and implementing the penalties provided for in the final order; or

(b) Amending the final order to change the restrictions or terms of the probation, which terms may include suspending the probationers license during the pendency of the probationary period, or any other discipline provided for in Section 34-24-360 of the Code of Ala. 1975; or

(c) Tabling action until the occurrence of a future event, which event shall be reflected in the record and communicated to the probationer; or

(d) Taking no action.

(9) An order of the Commission entered pursuant to § 545-X-3-.16(8)(a) or (b) immediately above shall be in writing and made part of the record. The order shall state:

(a) The term or restriction of probation which the Commission has found the probationer to have violated; and

(b) The facts upon which the Commission bases its finding.

(10) Record. All data, staff memoranda, evidence, argument, and testimony accepted or relied upon by the Commission relative to a probation compliance hearing shall be made a part of the record and shall be maintained by the Commission for at least five (5) years. Nothing in this section shall be construed to limit or alter the confidentiality requirements of § 34-24-361.1.

(11) Appeal. A physician whose probation has been revoked under the authority of this section may obtain judicial review of such revocation in accordance with the provisions of Sections 41-22-20 and 34-24-367 of the Code of Ala. 1975.

Ala. Admin. Code r. 545-X-3-.16

Adopted by Alabama Administrative Monthly Volume XXXV, Issue No. 12, September 29, 2017, eff. 10/27/2017.

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

Authors: Wallace D. Mills, E. Wilson Hunter

Statutory Authority:Code of Ala. 1975, §§ 34-24-360, 34-24-360.1, 34-24-361.