Louisiana Administrative Code › Title 46 - PROFESSIONAL AND OCCUPATIONAL STANDARDS › Part XLIV - Massage Therapists › Chapter 61 - Hearings › Section XLIV-6101 - Formal Disciplinary Hearings

Current through Register Vol. 50, No. 6, June 20, 2024
A. Formal Disciplinary Hearings
1. The board shall also be authorized to
				conduct formal disciplinary hearings.
2. The hearing shall be held before the board
				only after the involved licensee and/or applicant is given at least 30 days
				notice by registered or certified mail. The content of the notice, as well as
				the conduct of the hearings, shall be governed by
				R.S.
				49:955, being further provided that the
				licensee be advised of the right to be represented by legal counsel. The board
				shall arrange for a court reporter to make an accurate recording of all
				testimony presented at the hearing. Any person bringing a complaint waives the
				privilege of confidentiality for purposes of the hearing.
3. The rules of evidence, notice, authority
				to administer oaths, issue subpoenas, conduct depositions and control
				confidential or privileged information, will apply to the formal adjudication
				hearing in accordance with the Louisiana Administrative Procedure Act.
				Thereafter, the unsuccessful applicant or licensee may apply for a rehearing,
				as provided in
				R.S.
				49:959, subject to further judicial review,
				pursuant to
				R.S.
				49:964, 965.
4. It is the obligation of each licensed
				therapists or the holder of an establishment license to keep the board informed
				of current contact information. Accordingly, if notice of the hearing cannot be
				delivered by mail because of a change of address and the new address is not
				provided to the board, the board may hold the hearing without the therapists or
				establishment license holder being present, so long as reasonable efforts have
				been made to obtain the licensee's new address.
5. When the licensee receives notice of a
				complaint and/or the scheduling of a disciplinary hearing, he may file an
				answer to the notice responding to the charges, or offering any explanation or
				assert whatever defense is deemed applicable.
6. Upon timely request, the board has
				discretion to extend or continue the time set for the hearing for such reasons
				as:
a. ill health;
b. inability to obtain counsel;
c. the complexities of the case; or
d. other matters deemed by the board to
				constitute good cause.
7. The board attorney shall advise board
				members on proceedings during the hearing.
8. Any board member having reason to believe
				that he may be perceived to be biased or prejudiced against any of the parties
				to the proceeding or who has a personal or economic interest in the outcome of
				such proceedings shall immediately notify the remaining board members and
				request to be relieved of participation in the proceedings. Any party to such a
				hearing may file with the board an affidavit requesting the recusal of a board
				member because of bias or personal or financial interest. As soon as possible,
				but not later than the beginning of the hearing, the majority of the board must
				pass upon the request for disqualification. The concerned board member shall
				not vote in the action to disqualify. Any doubt concerning the fitness of a
				board member shall be resolved in favor of disqualification. In the event of
				disqualification, the board shall proceed without the disqualified member. The
				number of board members needed for a quorum and majority shall be reduced to
				compensate for the disqualified member(s).
9. The parties to the hearing are urged to
				confer prior to the hearing or through their respective counsel in an attempt
				to reduce or simplify the issues to be heard. The board will accept any joint
				stipulations between the parties as proven facts at the hearing. The purpose of
				the pre-hearing conference is to ensure that the hearing is not unduly
				prolonged by receiving testimony or other evidence on matters which are not
				seriously in dispute.
10. The board
				shall have discretion to consolidate one or more cases for hearing if the
				matters involve the same or related parties, or substantially the same
				questions of law or fact. The board may also grant separate hearings if such a
				joint hearing would be prejudicial to one or more of the parties. If hearings
				are to be consolidated, notice must be given to all parties in advance of the
				hearing.
11. The board shall
				consider a motion to modify or quash any subpoena issued in connection with the
				hearing or a deposition related to a hearing, provided that such motion is
				filed by registered mail with the board no later than three days prior to the
				hearing date or the date scheduled for the deposition. Grounds to quash or
				limit the subpoena include, but are not limited to:
a. testimony or material protected by
				privilege granted by statute, regulation, or other law;
b. burdensomeness that would not be justified
				in light of the evidence's importance to the case;
c. undue hardship on a witness;
d. vagueness; and
e. immateriality
12. The procedures to be followed in
				conducting the hearing, governing the order of proceeding, rulings on evidence,
				and the board's decision, are contained in the Louisiana Administrative
				Procedure Act.
13. The burden of
				proof rests upon the CIO who is presenting the charge before the board. No
				sanctions shall be imposed or order issued, except upon consideration of the
				whole record, as supported by and in accordance with, reliable, probative and
				substantial evidence. While proof beyond all reasonable doubt is not required
				to establish a given fact as true, the burden must be carried by a clear
				preponderance of the evidence. This standard of proof shall apply in all
				hearings conducted before the board and any review or examination of evidence
				or any hearing requested.
14. Any
				party or person deemed to be governed by or under the jurisdiction of R.S.
				36:3501-36:3516, may apply to the board for a declaratory order or ruling in
				order to determine the applicability of a statutory provision or rule of this
				board to said party or person. The board shall issue the declaratory order or
				ruling in connection with the request by majority vote of the board, signed and
				mailed to the requesting party. The board may seek legal counsel or an attorney
				general's opinion in connection with any such request.
15. Judicial review and appeal of any
				decision or order of the board shall be governed by
				R.S.
				49:964-965.