La. Admin. Code tit. 46 § XLIX-1305

Current through Register Vol. 50, No. 11, November 20, 2024

Section XLIX-1305 - Conduct of Formal Hearings

A. At any formal hearing conducted pursuant to these rules, any party to the proceedings may appear personally and with counsel and shall be given the opportunity to produce evidence and witnesses and to cross-examine witnesses.

B. At any formal hearing conducted pursuant to these rules, if a party shall appear without counsel, the board or person(s) designated as hearing officers or hearing officer shall advise such party of his right to be represented by counsel; and that, if he desires to proceed without counsel, he may call witnesses, cross-examine witnesses, and produce evidence in his behalf.

C. Appearances shall be noted on the official record of formal hearings.

D. The board, designated committee or hearing officer may grant adjournments upon request of any party to the proceedings, provided that an adjournment shall not be for any indefinite period of time, but shall be set down for a certain day.

E. If an adjournment is requested in advance of the formal hearing date, such request shall be submitted to the board in writing, and shall specify the reason for such request.

F. In considering an application for adjournment of a formal hearing the board, the designated committee, or hearing officer shall consider whether the purpose of the formal hearing will be affected or defeated by the granting of such adjournment.

G. The board, designated committee, or hearing officer shall issue subpoenas and subpoena duces tecum upon request of any party to the proceedings of any formal hearing set down by the board. No subpoena shall be issued until the party who wishes to subpoena the witnesses first deposits with the agency a sum of money sufficient to pay all fees and expenses to which a witness in a civil case is entitled pursuant to R.S. 13:3661 and R.S. 13:3671. Witnesses subpoenaed to testify before an agency only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive such additional compensation from the party who wishes to subpoena such witness as may be fixed by the agency with reference to the value of the time employed and the degree of learning of skill required. Whenever any person summoned under this Section neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the agency may apply to the judge of the district court for the district within which the person so summoned resides or is found, for an attachment against him for contempt. It shall be the duty of the judge to hear the application and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person and, upon his being brought before him, to proceed with a hearing of the case; and upon such hearing, the judge shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempt, to enforce obedience to the requirements of the summons and to punish such person for his default of disobedience.

H. The role of the hearing officer is to conduct an orderly hearing, take evidence, question witnesses, make findings of fact and conclusions of law and render an opinion to the board within 10 days of said hearing. The hearing officer shall not be bound by the rules of evidence in the conduct of a formal hearing, but the determination and recommendations of the hearing officer shall be founded upon sufficient legal evidence to sustain it.

I. Upon the conclusion of a formal hearing, the board shall at its next regularly scheduled or specially called meeting take such action upon such written findings and determinations as it deems proper, and shall execute and order in writing involving such findings and determinations. When in an adjudication proceeding a majority of the officials of the board who are to render the final decision have not heard the case or read the record, or the proposed order is not prepared by a member of the agency, the decision, if adverse to the party to the proceeding other than the agency itself, shall not be made final until a proposed order is served upon the parties, and an opportunity is afforded to each party adversely affected to fine exceptions and present briefs and oral argument to the officials who are to render the decision. The proposed order shall be accompanied by a statement of the reasons therefor and of the disposition of each issue of fact or law necessary to the proposed order, prepared by the person who conducted the formal hearing or by one who has read the record. No sanction shall be imposed or order be issued except upon consideration of the whole record and as supported by and in accordance with the reliable, probative, and substantial evidence. The parties by written stipulation may waive, and the agency, in the event there is no contest, may eliminate compliance with the Section.

J. The order of the board may include the assessment of civil penalties as provided by law or regulations. A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submits a proposed finding, parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.

K. The record, minutes and evidence of a formal hearing shall be made available to all parties for examination at the office of the board, or at such place as the board may direct. Copies of the minutes may be purchased at the rate per page covering the cost thereof.

La. Admin. Code tit. 46, § XLIX-1305

Adopted by the Department of Health and Human Resources, Board of Examiners of Nursing Home Administrators, April 1970, amended and promulgated LR 9:461 (July 1983), repealed and repromulgated by the Department of Health and Hospitals, Board of Examiners of Nursing Home Administrators, LR 18:181 (February 1992).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:2504 and R.S. 37:2510.