La. Admin. Code tit. 46 § XXXVIII-513

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

Section XXXVIII-513 - Formal Hearing

A. The commission has the authority, granted by R.S. 40:1133.4, to bring administrative proceedings against licensed EMS practitioners, applicants for licensure, individuals seeking enrollment or progression in an approved EMS education program, certified ambulance operators and individuals practicing EMS without licensure or certification. The commission and the individual are the parties to the proceeding. The individual has the right to appear and be heard, either in person or by counsel; the right of notice, a statement of what accusations have been made; the right to present evidence and to cross-examine; and the right to have witnesses subpoenaed.

B. Notice and Service

1. The chair or a designee fixes a time and place for a hearing.

2. At least 30 days prior to the date set for the hearing, a copy of the charges and a notice of the time and place of the hearing, shall be sent to the individual respondent by any means authorized for such purpose by this Part.

3. At least 20 working days prior to the scheduled hearing date, the individual shall respond in writing as to his or her intention to appear or not appear at the scheduled hearing. At least 20 working days prior to the scheduled hearing date, the individual shall also file with the commission a written response to the specific allegations contained in the notice of charges. Allegations not specifically answered shall be deemed admitted.

4. If the individual does not appear, in person or through counsel, after proper notice has been given, the individual has waived these rights and the commission may proceed with the hearing without the presence of the individual.

5. An individual who fails without a valid continuance to appear at two consecutive meetings after being validly served with a notice to appear, as set forth in Subsection B of this Section, at each may be summarily suspended for such reason. Any such suspension shall continue until the individual appears for a hearing before the commission, opportunity for which shall be afforded at the next regularly scheduled meeting thereof.

C. Motions for Continuance

1. The commission shall not postpone cases that have been scheduled for hearing absent good cause. A written motion by a licensed EMS practitioner, applicant, or student for a continuance shall be filed with the commission five working days prior to the time set for the hearing, except for extreme emergencies. The motion shall contain the reason for the request, which reason must be based upon good cause and have relevance for due process. Requests for continuances may be approved or denied by the chair or designee. No more than three requests for continuance shall be granted.

D. Subpoenas

1. The chair, or a designee of the commission, issues subpoenas for the commission for disciplinary proceedings, and when requested to do so, may issue subpoenas for the other party. Subpoenas include:

a. a subpoena requiring a person to appear and give testimony;

b. a subpoena duces tecum, which requires that a person produce books, records, correspondence, or other materials over which he has control.

E. Hearing

1. The hearing is held, at which time the commission's primary role is to hear evidence and argument, and to reach a decision. Any commission member, who because of bias or interest is unable to assure a fair hearing, shall be recused from that particular proceeding. The reasons for the recusal are made part of the record. Should the majority of the commission members be recused for a particular proceeding, the governor shall be requested to appoint a sufficient number of pro tem members to obtain a quorum for the proceeding.

2. The commission shall be represented by a Louisiana Department of Health's attorney. Evidence is presented that disciplinary action should be taken against the individual. The individual may present evidence personally or through an attorney, and witnesses may testify on behalf of the individual.

3. Evidence includes the following:

a. oral testimony given by witnesses at the hearing, except that, for good cause, testimony may be taken by deposition (cost of the deposition is borne by requesting party) and/or by sworn affidavits;

b. documentary evidence, i.e., written or printed materials including public, business or institutional records, books and reports; such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference, if the incorporated materials are available for examination by the parties before being received into evidence;

c. visual, physical and illustrative evidence;

d. admissions, which are written or oral statements of a party made either before or during the hearing;

e. facts officially noted into the record, usually readily determined facts making proof of such unnecessary;

f. all testimony is given under oath. If the witness objects to swearing, the word "affirm" may be substituted.

4. The chair of the commission presides and the customary order of proceedings at a hearing is as follows.

a. The director of the Bureau of EMS or their designee, or an attorney therefore, presents the case against the individual.

b. The individual, or his attorney, makes an opening statement, explaining why he believes that the charges against him are not legally founded.

c. The individual commission members ask relevant questions.

d. The individual, or his attorney, may make any statements.

e. The director of the Bureau of EMS or their designee or an attorney therefore, makes the final statement.

f. The commission may impose reasonable time limits on all sides in a hearing, provided that limits will not unduly prejudice the rights of the parties.

g. The commission may exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence. Objections to evidentiary offers may be made and shall be noted in the record.

h. When a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

i. Motions may be made before, during, or after a hearing. All motions shall be made at an appropriate time, according to the nature of the request. Motions made before or after the hearing shall be in writing. Those made during the course of the hearing may be made orally since they become part of the transcript of the proceeding.

5. The records of the hearing shall include:

a. all papers filed and served in the proceeding;

b. all documents and other materials accepted as evidence at the hearing;

c. statements of matters officially noticed;

d. notices required by the statutes or rules, including notice of the hearing;

e. affidavits of service or receipts for mailing or process or other evidence of service;

f. stipulations, settlement agreements or consent orders, if any;

g. records of matters agreed upon at a pre-hearing conference;

h. orders of the commission and its final decision;

i. actions taken subsequent to the decision, including requests for reconsideration and rehearing;

j. a transcript of the proceedings, if one has been made, or a tape recording or stenographic record.

6. The record of the proceeding shall be retained until the time for any appeal has expired, or until the appeal has been concluded. The record is not transcribed unless a party to the proceeding so requests, and the requesting party pays for the cost of the transcript. A party who appeals a decision of the commission shall pay all of the costs incurred by the Louisiana Department of Health for preparation of the original and any certified copy of the record of the proceeding that is required to be transmitted to the reviewing court.

7. The decision of the commission shall be reached according to the following process:

a. determine the facts in the issue on the basis of the evidence submitted at the hearing;

b. determine whether the facts in the case support the charges brought against the individual;

c. determine whether charges brought are a violation of the provisions or requirements of this Part.

8. The vote of the commission shall be recorded. Minority views may be made part of the record.

9. Sanctions against the individual who is party to the proceeding are based upon the findings of fact and conclusions of law determined by the hearing. The party is notified by certified mail of the decision of the commission.

F. Disciplinary Sanctions

1. The type of disciplinary sanctions and length of time specified for the sanctions shall be determined on an individual basis, considering all facts pertinent to the case.

2. The commission may set forth guidelines with ranges of disciplinary sanctions from which disciplinary penalties may be imposed. These guidelines are intended to serve only as a guide for staff and commission members when considering penalties, which could be imposed for specific violations of the provisions or requirements of this Part. Guidelines are in no way binding on the commission when dealing with disciplinary matters. The commission may order license certification sanctions.

3. The disciplinary guidelines are based upon a single count violation. Multiple counts of violations of the same action, or other unrelated violations contained in the same complaint will be grounds for enhancement of penalties. Each day of a continuum of violations may be treated as a separate violation.

4. In determining sanctions, consideration may be given to aggravating or mitigating circumstances identified by the commission in addition to any other factors. The list of aggravating and mitigating circumstances in the guidelines is not to be considered an exclusive list of circumstances.

a. Aggravating circumstances may result in the commission issuing maximum sanctions, or they may justify enhancement of a penalty beyond the maximum guidelines.

b. Mitigating or extenuating circumstances may justify lessening of the sanctions below the minimum guidelines. License suspensions may be stayed with stipulated probations in some extenuating circumstances.

5. The order may stipulate remedial education, specific evaluation and therapy, and other sanctions as deemed necessary and appropriate to the case.

G. Reconsideration or Rehearing

1. The commission shall reconsider a matter when ordered to do so by a higher administrative authority or when the case is remanded for reconsideration or rehearing by a court to which the commission's decision has been appealed.

2. The commission may reconsider a matter which it has decided. This may involve rehearing the case, or it may involve reconsidering the case on the basis of the record. Such reconsideration may occur when a party files a petition requesting that the decision be reconsidered by the commission and specifies the particular grounds therefore.

3. A petition by a party for reconsideration or rehearing must be in proper form and filed within 20 days from the date of entry of the decision. A decision is deemed to be entered when it is signed by the chair or designee and sent by certified mail to the individual's address of record. The petition shall set forth the grounds for the rehearing, which include one or more of the following:

a. the commission's decision is clearly contrary to the law and the evidence;

b. there is newly discovered evidence, which was not available to the individual at the time of the hearing and which may be sufficient to reverse the commission's action;

c. previously considered ought to be examined in order to dispose of the case properly;

d. it would be in the public interest to further consider the issues and the evidence.

4. Upon the commission's receipt of a petition for rehearing or reconsideration, the commission may affirm or modify the decision or grant a rehearing to all or any of the parties and on all or part of the issues for any of the above stated reasons. An order granting a rehearing shall specify with particularity the ground or grounds on which the rehearing is granted, and the rehearing shall cover only those matters so specified.

H. Emergency Action

1. If the commission finds that public health, safety, and welfare requires emergency action and a finding to that effect is incorporated in its order, summary suspension of a license or certification may be ordered by the chair or designee pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined at the next regularly scheduled commission meeting.

I. Disciplinary Proceedings in Another Licensing Jurisdiction

1. When a licensed EMS practitioner has his or her license revoked, suspended, denied or sanctioned in other ways for disciplinary reasons by the original certification/licensing jurisdiction or by a subsequent certification/licensing authority, that licensed or certified EMS practitioner shall be notified that his or her Louisiana license or certification is automatically suspended, except for the following:

a. nonpayment of fees;

b. a person in a recovery program for chemical dependency receives permission of the state of origin to transfer to another state;

c. the licensed EMS practitioner is issued a reprimand and the licensed EMS practitioner agrees to having his or her Louisiana License reprimanded identically to, or in excess of, the said jurisdiction's reprimand; or

d. the license is encumbered with a reprimand with stipulations and the licensed EMS practitioner agrees to having his or her Louisiana license probated with stipulations that are identical to, or exceed, the stipulations in said jurisdiction.

2. The licensed EMS practitioner may have his or her license reinstated provided that the licensed EMS practitioner:

a. provides evidence of an unencumbered license by the involved certification/licensing authority and

b. meets requirements for reinstatement of license as described in this Chapter.

La. Admin. Code tit. 46, § XXXVIII-513

Promulgated by the Department of Health and Hospitals, Emergency Medical Services Certification Commission, LR 29:1825 (September 2003), Amended by the Department of Health, Office of Public Health, Emergency Medical Services Certification Commission, LR 50255 (2/1/2024), Amended LR 50998 (7/1/2024).

AUTHORITY NOTE: Promulgated in accordance with R.S. 1133.4(A)(8), R.S. 40:1133.5(9), and R.S. 40:2017.10.