Alabama Administrative Code › Title 540 - ALABAMA BOARD OF MEDICAL EXAMINERS › Chapter 540-X-6 - CONDUCT OF HEARINGS IN CONTESTED CASES › Section 540-X-6-.04 - Conduct Of Hearings In Contested Cases

Current through Register Vol. 42, No. 9, June 28, 2024
(1) When the Board of Medical Examiners
			 determines that there exists sufficient evidence to believe that a registrant
			 may have committed any of the offenses or conditions as set out in
Code of Ala. 1975
, §
								20-2-54, then the Board may direct
			 that a notice and complaint be filed with the Board and served upon the
			 registrant. The notice and complaint shall conform to the requirements of
Code of Ala. 1975
, §
								41-22-12(b), and
			 shall set a date for a hearing before the Board not less than thirty (30) days
			 after the date of service of the notice, or in the case of a renewal of
			 registration, not later than thirty (30) days after the expiration of such
			 registration. Notice may be served by personal service or by certified mail,
			 return receipt requested, to the last known address of the registrant. If the
			 registrant cannot be located at this last known address or if it appears that
			 the registrant is seeking to avoid service of the notice, then the chairman of
			 the Board may direct service of process in any other manner as permitted by
			 law. When the Board has made a reasonably diligent inquiry and cannot establish
			 a valid mailing address for the registrant, then notification to the Board by
			 the U.S. Post Office of attempted service by certified mail, return receipt
			 requested, to the last known mailing address of the registrant, shall authorize
			 the Board to proceed in the absence of the registrant.
(2) In a revocation hearing the registrant
			 shall file with the Board and shall serve upon each party to the contested case
			 or their attorney an answer and response to the allegations set forth in the
			 complaint. Any allegation of fact set forth in the complaint which is not
			 disputed or denied, in whole or in part, by the registrant in his answer may be
			 considered as true by the Board on the hearing of the contested case. In the
			 answer to the complaint, the registrant should set out a brief, concise summary
			 of those facts upon which he intends to rely in the contested case hearing;
			 however, in no event shall the registrant be required to make any statement in
			 contravention of the right against self-incrimination granted under the U.S.
			 and Alabama Constitutions. The answer shall be filed with the Board not later
			 than twenty (20) days after service of the notice of hearing. No answer is
			 required by a registrant in a reinstatement hearing or in a revocation hearing
			 in which the registrant has consented to informal disposition under Rule
			 540-X-6-.05(6).
(3) In all contested cases the registrant
			 shall be entitled to personally appear before the Board, to be represented by
			 counsel of his own choice at his own expense, to cross-examine witnesses
			 offering testimony to the Board and to examine documents offered into evidence,
			 to call witnesses on his own behalf, to compel the attendance of witnesses and
			 the production of documents and other evidence by subpoena at his own expense
			 and to present evidence and arguments on all material issues arising in the
			 contested case.
(4) The Chairman of
			 the Board shall preside during hearings with the assistance and advice of a
			 hearing officer. A quorum of the Board necessary to hear and decide contested
			 cases is set at six (6) members of the Board. The hearing shall be open to the
			 public, provided, that the Chairman may direct that the testimony of minors or
			 the testimony of a patient relating to his or her confidential medical history
			 be taken in executive session and provided that the Chairman shall direct that
			 any information deemed confidential by state or federal statutes be taken in
			 executive session. The Chairman may place reasonable limitations upon the
			 number of spectators in attendance consistent with the capacity of the hearing
			 room. No filming or video taping of hearings will be permitted without the
			 express permission of the Chairman. All evidence and argument shall be
			 presented before the Board and no member of the Board shall participate in the
			 final decision unless he has been present during all of the hearing or unless
			 he has considered a complete record of those proceeding which took place in his
			 absence. At the conclusion of the presentation of evidence, the public portion
			 of the hearing will be closed and the Board will deliberate in executive
			 session.
(5) The chairman shall be
			 responsible for the conduct of the hearing and all rulings of the chairman on
			 procedural matters and rulings of the hearing officer on legal matters shall be
			 final and shall be deemed to be the action of the Board unless such rulings are
			 challenged by a member of the Board. All challenges are to be considered and
			 decided by the Board outside the presence of the parties, attorneys and
			 witnesses to the contested case, and only the decision of the Board shall be
			 entered into the record. The chairman may impose reasonable conditions and
			 limitations on the parties' presentation during a contested case including, but
			 not limited to, the prescribing of reasonable limitations on argument,
			 requiring the parties to file briefs and memoranda with the Board, and the
			 imposition of reasonable sanctions and penalties for misconduct of parties and
			 attorneys before the Board. 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 chairman shall permit the members of the Board to direct questions to
			 witnesses offering testimony to the Board but shall ensure that such questions
			 are material and relevant to the issues under inquiry.
(7) The hearing shall be conducted insofar as
			 is practicable in the same manner as a civil action at law. In a revocation
			 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 facie violation of the offenses and
			 conditions as stated in the complaint. In reinstatement hearings the Board
			 shall initially receive into evidence the notice of hearing and a record of all
			 the prior transactions of the Board concerning the registrant and it shall then
			 be the obligation of the registrant to proceed and to present evidence and
			 argument to the Board establishing the right of the registrant to the relief
			 requested. The registrant shall have the burden in a reinstatement hearing of
			 establishing the reasonable satisfaction of the Board that the applicant is
			 entitled to the registration certificate or other relief that is requested
			 under the criteria outlined in Rule
			 540-X-6-.02(3)
			 and that the public safety and welfare and the safety and welfare of the
			 patients of the registrant would not thereby be jeopardized.
(8) At the conclusion of the hearing the
			 Board shall conduct its deliberations and render its decision outside the
			 presence of the parties. The Board may have the advice and counsel of the
			 hearing officer during its deliberations. The final order of the Board shall be
			 rendered in conformity with §
								41-22-16 of the Administrative
			 Procedure Act.
(9) Upon a finding
			 by the Board that the registrant is guilty of any violation of the offenses and
			 conditions as set forth in
Code of Ala. 1975
, §
								20-2-54(a), the
			 Board may, within its sole discretion, impose one of the following penalties:
(a) Revoke the registration
			 certificate.
(b) Revoke the
			 registration certificate, suspend the revocation, and place the registrant on
			 probation for a specific stated period and impose such conditions or
			 restrictions on the registration certificate as it shall deem
			 necessary.
(c) Suspend the
			 registration certificate for a specific stated period, at the expiration of
			 which time the registration certificate will automatically be reinstated with
			 such authorized schedules as the registrant had prior to the action of the
			 Board.
(d) Restrict the
			 registration certificate by deletion of such authorized schedules for
			 particular classes of controlled substances as deemed appropriate by the Board
			 according to the facts of the case. Unless otherwise specified in the order of
			 the Board, a restricted registration certificate shall continue to be
			 restricted until the Board removes the restrictions, subject to the right of
			 the registrant to apply for reinstatement or to apply for an unrestricted
			 certificate at a later date.