Louisiana Administrative Code › Title 46 - PROFESSIONAL AND OCCUPATIONAL STANDARDS › Part LXXXV - Veterinarians › Chapter 14 - Disciplinary Procedures › Section LXXXV-1409 - Formal Hearing

Current through Register Vol. 50, No. 6, June 20, 2024
A. The board
				has the authority, granted by
				R.S.
				37:1511 et seq., to bring administrative
				proceedings against persons to whom it has issued a license, temporary permit
				or certification or any applicant requesting a license, temporary permit or
				certification. The person 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. If
				the person does not appear, either in person or through counsel, after proper
				notice has been given, the person may be considered to have waived these rights
				and the board may proceed with the hearing without the presence of the
				person.
C. The process of
				administrative action shall include certain steps and may include other steps
				as follows.
1. The board receives a complaint
				alleging that a person has acted in violation of the Louisiana Veterinary
				Practice Act, the rules and regulations of the board, or the Principles of
				Veterinary Medical Ethics of the American Veterinary Medical Association.
				Communications from the complaining party shall not be revealed to any person
				until and unless a formal complaint is filed except those documents being
				subpoenaed by a court.
2.
a. The complaint is investigated by the
				investigating board member or board attorney to determine if there is
				sufficient evidence to warrant disciplinary proceedings. No board member, other
				than the investigating board member, may communicate with any party to a
				proceeding or his representative concerning any issue of fact or law involved
				in that proceeding.
b. A decision
				to initiate a formal complaint or charge is made if one or more of the
				following conditions exist:
i. the complaint
				is sufficiently serious;
ii. the
				person fails to respond to the board's correspondence concerning the
				complaint;
iii. the person's
				response to the board's letter or investigation demand is not convincing that
				no action is necessary; or
iv. an
				informal approach is used, but fails to resolve all of the issues.
3. A sworn complaint is
				filed, charging the violation of one or more of the provisions of the Louisiana
				Veterinary Practice Act, the rules and regulations promulgated thereto, the
				American Veterinary Medical Association's Principles of Veterinary Medical
				Ethics, or prior final decisions and/or consent orders involving the
				person.
4. A time and place for a
				hearing is fixed by the chairman or an agent of the board.
5.
a. At
				least 20 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 are sent by certified mail to the
				last known address of the person accused. If the mailing is not returned to the
				board, it is assumed to have been received. It is the person's obligation to
				keep the board informed of his whereabouts.
b. The content of the charges limits the
				scope of the hearing and the evidence which may be introduced. The charges may
				be amended at any time up to 10 days prior to the date set for the
				hearing.
c. If the board is unable
				to describe the matters involved in detail at the time the sworn complaint is
				filed, this complaint may be limited to a general statement of the issues
				involved. Thereafter, upon the person's request, the board shall supply a more
				definite and detailed statement to the person.
6. Except for extreme emergencies, motions
				requesting a continuance of a hearing shall be filed at least five days prior
				to the time set for the hearing. The motion shall contain the reason for the
				request, which reason must have relevance to due process.
7.
a. The
				chairman, or an authorized agent of the board, issues subpoenas for the board
				for disciplinary proceedings, and when requested to do so, may issue subpoenas
				for the other party. Subpoenas include:
i. a
				subpoena requiring a person to appear and give testimony; and
ii. a subpoena duces tecum, which requires
				that a person produce books, records, correspondence, or other materials over
				which he has custody.
b.
				A motion to limit or quash a subpoena may be filed with the board, but not less
				than 72 hours prior to the hearing.
8.
a. The
				hearing is held, at which time the board's primary role is to hear evidence and
				argument, and to reach a decision. Any board member who, because of bias or
				interest, is unable to assure a fair hearing, shall be recused from the
				particular proceeding. The reasons for the recusal are made part of the record.
				Should the majority of the board 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.
b. The board is represented by its agent who
				conducted the investigation and presents evidence that disciplinary action
				should be taken against the person and/or by the board's attorney. The person
				may present evidence personally or through an attorney, and witnesses may
				testify on behalf of the person.
c.
				Evidence includes the following:
i. 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);
ii. documentary
				evidence, i.e., written or printed materials including public, business,
				institutional records, books and reports;
iii. visual, physical and illustrative
				evidence;
iv. admissions, which are
				written or oral statements of a party made either before or during the
				hearing;
v. facts officially noted
				into the record, usually readily determined facts making proof of such
				unnecessary; and/or
vi. other items
				or things allowed into evidence by the Louisiana Evidence Code or applicable
				statutory law or jurisprudence.
d. All testimony is given under oath. If the
				witness objects to swearing, the word "affirm" may be substituted.
9. The chairman of the board
				presides and the customary order of proceedings at a hearing is as follows:
a. the board's representative makes an
				opening statement of what he intends to prove, and what action, he wants the
				board to take;
b. the person, or
				his attorney, makes an opening statement, explaining why he believes that the
				charges against him are not legally founded;
c. the board's representative presents the
				case against the person;
d. the
				person, or his attorney, cross-examines;
e. the person presents evidence;
f. the board's representative
				cross-examines;
g. the board's
				representative rebuts the person's evidence;
h. both parties make closing statements. The
				board's representative makes the initial closing statement and the final
				statement.
10. 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 record of the
				proceeding.
11.
a. The record of the hearing shall include:
i. all papers filed and served in the
				proceeding;
ii. all documents
				and/or other materials accepted as evidence at the hearing;
iii. statements of matters officially
				noticed;
iv. notices required by
				the statutes or rules; including notice of the hearing;
v. affidavits of service or receipts for
				mailing or process or other evidence of service;
vi. stipulations, settlement agreements or
				consent orders, if any;
vii.
				records of matters agreed upon at a prehearing conference;
viii. reports filed by the hearing officer,
				if one is used;
ix. orders of the
				board and its final decision;
x.
				actions taken subsequent to the decision, including requests for
				reconsideration and rehearing;
xi.
				a transcript of the proceedings, if one has been made, or a tape recording or
				stenographic record.
b.
				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.
12.
a. The
				decision of the board shall be reached according to the following process:
i. determine the facts at issue on the basis
				of the evidence submitted at the hearing;
ii. determine whether the facts in the case
				support the charges brought against the person; and
iii. determine whether charges brought are in
				violation of the Louisiana Veterinary Practice Act, rules and regulations of
				the board, and/or the American Veterinary Medical Association's Principles of
				Veterinary Medical Ethics.
b. Deliberation
i. The board will deliberate in closed
				session.
ii. The board will vote on
				each charge as to whether the charge has been supported by the evidence. The
				standard will be "preponderance of the evidence."
iii. After considering each charge, the board
				will vote on a resolution to dismiss the charges, deny, revoke or suspend any
				license, temporary permit or certification issued or applied for or otherwise
				discipline a person or applicant. An affirmative vote of a majority of the
				quorum of the board shall be needed to deny, revoke, or suspend any license,
				temporary permit or certification issued or applied for in accordance with the
				provisions of this Chapter or otherwise discipline a person or applicant. The
				investigating board member shall not be involved in or present during
				deliberation, nor shall he be included in the quorum or allowed to vote on the
				outcome of the proceeding.
c. Sanctions against the person who is party
				to the proceeding are based upon findings of fact and conclusions of law
				determined as a result of the hearing, and will be issued by the board in
				accordance with applicable statutory authority. The party is notified by mail
				of the final decision of the board.
d. In addition to the disciplinary action or
				fines assessed by the board against a licensed veterinarian or temporary
				permittee, the board may assess all costs incurred in connection with the
				proceedings, including but not limited to investigators', stenographers',
				attorney's fees and court costs.
e.
				With regard to a registered veterinary technician, the board may, as a
				probationary condition or as a condition of the reinstatement of any
				certification suspended or revoked hereunder, require the holder to pay all
				costs of the board proceedings, including investigators', stenographers',
				secretaries', attorneys' fees and court costs.
f. With regard to a certified animal
				euthanasia technician, the board may require the holder to pay all costs of the
				board proceedings, including investigators', stenographers', secretaries',
				attorneys' fees, and court costs.
13. Every order of the board shall take
				effect immediately on its being rendered unless the board in such order fixes a
				stay of execution of a sanction for a period of time against an applicant or
				licensee, temporary permittee or holder of a certificate. Such order, without a
				stay of execution, shall continue in effect until expiration of any specified
				time period or termination by a court of competent jurisdiction. The board
				shall notify all licensees, temporary permittees or holders of certificates of
				any action taken against him and may make public its orders and judgment in
				such manner and form as allowed by law.
14.
a. The
				board 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 who is dissatisfied with a decision
				of the board files a motion requesting that the decision be reconsidered by the
				board.
b. The board 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 board's decision has been appealed.
c. A motion by a party for reconsideration or
				rehearing must be in proper form and filed within 10 days after notification of
				the board's decision. The motion shall set forth the grounds for the rehearing,
				which include one or more of the following:
i.
				the board's decision is clearly contrary to the law and evidence;
ii. there is newly discovered evidence by the
				party since the hearing which is important to the issues and which the party
				could not have discovered with due diligence before or during the
				hearing;
iii. there is a showing
				that issues not previously considered ought to be examined in order to dispose
				of the case properly; or
iv. it
				would be in the public interest to further consider the issues and the
				evidence.