Alabama Administrative Code Chapter 746-X-4 — Disciplinary Actions

746 Alabama State Board of Prosthetists and Orthotist

Ala. Admin. Code r. 746-X-4-.01 Complaints

Complaints alleging any violation of the Alabama Prosthetics and Orthotics Act, any Board Rule or any other applicable law will be submitted to the Board in writing. A copy of a Complaint form may be obtained from the Board’s Office.

(1) The Board shall investigate any complaint concerning any individual or entity regulated by the Board in the manner set forth in this Rule and in doing so, may request the production of documents, records or other information deemed necessary in order to make a determination if probable cause for a violation exists. The board may within its discretion convene a hearing as set out in Rule 746-X-4-.04 and/or 746-X-4-.05.

History

• Author: Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 16, 2005; effective January 20, 2006. Amended: Filed November 14, 2007; effective December 19, 2007. Amended: Filed March 29, 2012; effective May 3, 2012.

Ala. Admin. Code r. 746-X-4-.02 Complaint Investigation Procedure

(1) In the event a complaint is filed against a licensee, or an accredited facility or it is determined from other information that an investigation is necessary, the procedure for investigation shall be as follows:

(a) Any complaint shall be assigned to a Committee made up of two (2) Board Members. The Board’s Executive Director shall be a member of each committee.

(b) At any time during the course of an investigation of a complaint, the Board may, in its discretion, issue a Letter of Concern to the individual or entity who is the subject of the complaint. A Letter of Concern shall consist of a private, confidential, written communication from the Board to the subject of the complaint, the contents of which shall be specified by the Board. A Letter of Concern shall not be considered a disciplinary action and is not intended to communicate a finding on the part of the Board that the individual or entity to whom the Letter of Concern is directed will be charged with or has been found guilty of any wrong doing. The purpose of the Letter of Concern is to provide notice to the applicable individual or entity that the Board has concluded that the alleged actions or conduct in question may not be in accord with the provisions of the Alabama Prosthetists and Orthotists Act, Board’s Rules or any other applicable law. The issuance of a Letter of Concern shall not preclude the Board from taking any other action authorized by law. A Letter of Concern shall be deemed a non-public record. The Board shall notify the complainant of its decision to issue a Letter of Concern. The Board may make public statistical reports concerning the number and type of Letter of Concern issued.

(c) At such time as the committee may determine that there is probable cause to believe that an individual or entity is guilty of violating any of the professional standards set out in Rules 746-X-3, then the committee may direct that a written administrative complaint be prepared by the Executive Director. The administrative complaint shall be executed by the Presiding Officer, or any member designated by the board and shall request that the Executive Director issue an order directing the respondent to appear and answer the allegations of the administrative complaint. The subject of the investigation will be afforded the opportunity to plea guilty and pay a fine set by the committee and approved by the Board.

(d) If the Committee determines after investigation, and consultation with the Board’s counsel, that probable cause exists of a violation of the Alabama Prosthetists and Orthotists Act, the Board Rules or any other applicable law, the individual or entity the subject of the complaint shall be served with a Notice of charges and the time and place for a hearing as set forth in the Alabama Prosthetists and Orthotists Act, the Alabama Administrative Procedure Act or any applicable Board Rule. If there is a determination of probable cause, those on the Committee shall not be a part of the Board who considers the charges.

In the event the Committee determines that probable cause does not exist, no further action will be taken and the complaint shall be considered closed. In that event, the complainant shall be notified.

(e) When the Board determines that there exists sufficient evidence to believe that a respondent may have violated the Professional Standards as set in Rule 746-X-3, then the Board may direct that a notice and complaint be filed with the Board and served upon the respondent. The notice and complaint 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 license, not later than thirty (30) days after the expiration of such license. Notice may be served by personal service or by certified mail, return receipt requested, to the last known address of the respondent. If the respondent cannot be located at this last known address or if it appears that the respondent is seeking to avoid service of the notice, then the Presiding Officer may direct service of process in any other manner permitted by law. When the Board has made a reasonably diligent inquiry and cannot establish a valid mailing address for the respondent, 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 respondent, shall authorize the Board to proceed in the absence of the respondent.

History

• Author: Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 17, 2004; effective January 21, 2005. Amended: Filed December 16, 2005; effective January 20, 2006. Amended: Filed November 14, 2007; effective December 19, 2007. Amended: Filed March 29, 2012; effective May 3, 2012.

Ala. Admin. Code r. 746-X-4-.03 Pre-Hearing Discovery

(1) Permitted. Pre-hearing discovery shall be permitted in accordance with this rule.

(2) Extent Allowed. The attorney for the Board or the respondent may upon application to the hearing officer obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action, whether it relates to the charge of the Board or the defense of the respondent.

(3) Methods of Discovery.

(a) Upon written application to the hearing officer, and in his discretion, the following discovery may be allowed:

1. Deposition upon oral examination of any expert witness.

2. Interrogatories.

3. Request for production and copying of documents or for inspection.

(b) The discovery must be had in accordance with any terms and conditions imposed by the hearing officer. The hearing officer may impose any such terms and conditions as are just upon discovery in order to protect a person from annoyance, embarrassment, oppression, or undue burden or expense.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003.

Ala. Admin. Code r. 746-X-4-.04 Disciplinary Actions

(1) Informal Hearings.

(a) The Secretary may hold an informal hearing concerning the denial of an application or complaint.

(b) Assigned Board members shall attend the informal hearing as appointed by the Secretary.

(c) Parties will be afforded a reasonable opportunity to present their position regarding the matter at issue.

(d) If it appears that the informal hearing may not resolve the application or complaint in question, then a formal hearing may commence.

(2) Formal Hearings.

(a) A formal hearing shall be conducted according to the Administrative Procedures Act, Code of Ala. 1975, §41-22 as amended.

(b) Copies of the formal hearing procedures are filed in the Executive Director’s office, Alabama State Board of Prosthetists and Orthotists, 400 S. Union St. Suite 395, Montgomery AL 36104, and are available for public inspection during regular working hours.

(3) Agreed Orders.

(a) Denial of licenses or complaints may be resolved by agreed order any time.

(b) The Board Attorney may negotiate the terms of an agreed order with the licensee or applicant; however, the agreed order is not effective until accepted by the board.

(4) Probation.

(a) Any reasonable term or condition of probation may be included in an order.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 17, 2004; effective January 21, 2005.

Ala. Admin. Code r. 746-X-4-.05 Formal Hearings

(1) Conduct of Hearing.

(a) Hearing Officer. The Presiding Officer shall appoint a person to act as an impartial hearing officer at any disciplinary hearing. A hearing officer may be an attorney licensed to practice law in the State of Alabama, or may be any person with experience and qualifications necessary to carry out the duties if the hearing officer. Such hearing officer shall preside at the hearing and shall rule on all questions of evidence and procedure, notwithstanding any other provisions of these rules to the contrary. The hearing officer shall be compensated at a rate to be prescribed by the Board for services actually performed pursuant to a contractual agreement entered into between the Board and the hearing officer. Subject to the restrictions concerning participation in prosecution and conflict of interest, a hearing officer may be an employee of the Board.

1. The general duties of the hearing officer shall be to guide and direct the course of contested cases before the Board, to advise the Board on matters of law and evidence pertaining to those contested cases and to assist the Board in the preparation of orders and decrees resulting from hearings on contested cases. Specifically, the hearing officer shall be empowered to:

(i) Rule upon any motions contesting or challenging the legal sufficiency of a complaint, order to show cause, or other document which is the basis of a contested case, subject to the limitation set forth in paragraph (e) below.

(ii) Rule on all pre-hearing motions by all parties to a contested case except that the hearing officer may not grant a continuance or postponement of a hearing in a contested case without the consent of the Presiding Officer of the Board.

(iii) Order the attendance of parties and/or attorneys at hearings and conferences on matters related to the contested case.

(iv) Establish on behalf of the Board submission dates, deadlines, and time tables, which shall be binding on the parties in all matters related to the orderly conduct of the contested case.

(v) Enter orders on behalf of the Board when the Board is not in session on legal matters related to a pending contested case, except that the hearing officer is not authorized to dismiss a complaint. The hearing officer may order the complainant to file a more definite statement or to amend his complaint to provide additional information. Dismissal of a complaint will only be upon the order of the Board.

(vi) Administer oaths and to certify the authenticity of documents when required in the discharge of his duties as hearing officer in a contested case.

(vii) Direct that evidence relevant to the general character and reputation of the applicant be submitted in writing by affidavit or to place a reasonable limitations upon the number of witnesses permitted to testify as to the character and reputation of the applicant.

(viii) Render advice to the Presiding Officer of the Board on the conduct of all aspects of hearings on contested cases.

2. Except as limited above, the hearing officer is authorized to rule on all legal matters including motions addressed to the sufficiency of the complaint, objections to the evidence, motions to dismiss for lack of evidence, and any other matters requiring legal opinion. The ruling of the hearing officer shall be deemed to be the official ruling of the Board unless that ruling is challenged by a member of the Board, in which case the Board shall consider the challenge to the ruling of the hearing officer outside the presence of the parties and may affirm, modifying or overrule the decision of the hearing officer.

3. When directed by the Board, the hearing officer shall prepare a recommended final order. The Board may accept, reject or modify the hearing officers final recommended order. The final order shall be executed and authenticated in the manner prescribed by the Board.

4. When directed by the Board, the hearing officer shall notify all parties to the hearing of the final order of the Board.

5. The person appointed by the Board to act as a hearing officer in the contested case shall not have participated in the investigation or prosecution of the licensee in the matters pertaining to the contested case. The hearing officer shall not have a manifest conflict of interest with any party in a contested case.

(i) Plea. The respondent shall plea either “guilty” or “not guilty” to the charges set forth in the complaint.

(ii) Opening Statement. Each side shall be permitted to make a short opening statement.

(iii) The state shall present its evidence, followed by the respondent, followed by rebuttal by the state. Each witness called may be examined in the following manner:

(I) Direct examination

(II) Cross examination

(III) Examination by the Board

(IV) Re-direct examination

(V) Re-cross examination

(VI) Re-examination by the Board

(iv) Closing Argument. Each side shall be permitted to make a short closing statement summarizing the evidence presented and urging the application of relevant law to the evidence presented.

(v) Order. The Board shall issue an Order, which shall include findings of fact, official notice taken and conclusions of law, separately state. The licensee shall be delivered a copy of the Order by certified mail, return receipt requested, and a copy shall be mailed first class to the attorney of record.

(2) Plea of Guilty and Waiver of Hearing. Upon the terms acceptable to the Board, the Board attorney may offer a Respondent the opportunity of a settlement of the charges of the complaint which such settlement may include the entering by the Respondent of a plea of guilty to some or all of the charges of a complaint, thereby waiving any hearing on the charges of the complaint. Upon the Board’s acceptance of a Respondent’s guilty plea to one or more charges of a complaint, the Board may enter an order within a reasonable time thereafter revoking or suspending the Respondent’s license, and/or fining the Respondent in accordance with Rules 746-X-4-.06.

(3) Evidence. Evidence shall be admitted in accordance with the Alabama Administrative Procedures Act found at Section 41-22-13 of the Code of Ala. 1975. The probable cause note and any attachments thereto shall be admitted into evidence as a portion of the complaint without further authentication.

(4) Emergencies. The Board may in any emergency situation when danger to the public health, safety, and welfare requires, suspend a license without hearing or with an abbreviated hearing as provided for in Section 41-22-19(d) of the Code of Ala. 1975.

(5) Other. The hearing shall otherwise be conducted in compliance with the provision of the Alabama Administrative Procedures Act.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 17, 2004; effective January 21, 2005. Amended: Filed December 16, 2005; effective January 20, 2006.

Ala. Admin. Code r. 746-X-4-.06 Discipline

(1) Revocation or Suspension of License. Upon a finding that respondent has violated any enumerated provision of Code of Ala. 1975, §34-25A-(1-14), or any rule adopted pursuant thereto, the Board may revoke or suspend respondent’s license to practice orthotics or prosthetics or pedorthists or assist in the practice of orthotics and prosthetics in Alabama or the Board may revoke or suspend a license of an accredited facility.

(2) Fines. Upon finding that the respondent has violated any enumerated provision of law governing the practice of prosthetics and/or orthotics or pedorthists or any rule adopted pursuant thereto, the Board may impose fines for each violation.

(a) The board may impose a fine not to exceed $1,000 for each violation of the law governing the practice of orthotics and/or prosthetics, or pedorthists.

(3) Stay of Execution of Order. The Board may, in its discretion, permanently or temporarily stay the execution of its order to revoke or suspend respondent’s license.

(4) Probation. The Board may, in its discretion, establish probation for a respondent.

(5) Consideration. In determining whether a license should be revoked or suspended, whether a fine should be imposed and in what amount, and whether execution of the order should be stayed, and upon what conditions, the Board shall consider all relevant factors, including, but not limited to the following:

(a) the severity of the offense;

(b) the danger to the public;

(c) the number of repetitions of offenses;

(d) the length of time since the violation;

(e) the number of complaints filed against the licensee;

(f) the length of time the licensee has practiced;

(g) the actual damage, physical or otherwise, to the patient;

(h) the deterrent effect of the penalty imposed;

(i) the effect of the penalty upon the licensee’s livelihood;

(j) any efforts of rehabilitation; and any other mitigating or aggravating circumstances.

History

• Author: Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed November 14, 2007; effective December 19, 2007.

Ala. Admin. Code r. 746-X-4-.07 The Processing Of Appeals

(1) Time to Appeal. An appeal must be initiated by a notice, in writing, directed to the Alabama State Board of Prosthetists and Orthotists and filed with the Board office within fifteen days from the date of the final order of the Board denying an application for licensure, registration, or accreditation.

(2) Scope of Appeal. The appeal to the Alabama State Board of Prosthetists and Orthotists shall not be a hearing de novo, but shall be limited to a consideration of the record of the proceedings before the Board. In the event the Board based upon its reexamination of the record as a whole, finds the applicant is qualified for licensure, then the Board may order that a license must be issued. For good cause shown, and within the discretion of the Board, the appellant may, upon application, be permitted to supplement the record on appeal, upon showing that the evidence was newly discovered or was not reasonably available to the appellant at the time of the hearing before the Board. In the event that such application is granted, the Board shall be afforded an opportunity to respond to or refute such evidence.

(3) Record on Appeal: The record on appeal shall consist of:

(a) Verbatim transcript of the proceedings before the Board, including the testimony of witnesses, statements of the appellant and/or counsel, and statements of the Board;

(b) Copies of all documents introduced into evidence at the hearing and considered by the Board in reaching its determination; and

(c) Copies of all pleadings, motions, briefs, and arguments, or other documents filed before the Board in connection with the hearing. It shall be the responsibility of the appellant, at his expense, to ensure the complete and accurate preparation of the record on appeal, and to assure that one copy is filed with the Board in a timely manner. The Board shall be required to furnish, at a reasonable rate based on the actual costs, copies of all documents in the possession of the Board which constitute a portion of the record.

(4) Briefs. It shall not be required that the appellant or the Board submit a brief and argument, but he shall be permitted to do so either personally or by counsel. The brief and arguments, if submitted, need not take any particular format, but in no event shall it exceed twenty pages in length. It is suggested, but not required, that the appellant submit proposed findings of fact keyed to the record on appeal which support the contention raised in the brief and argument.

(5) Oral Argument. Upon request to the Board, the appellant shall be permitted to appear personally or by counsel before the commission at a regular scheduled meeting to present such oral arguments as he may deem appropriate, provided, however, that the matters to be argued are limited to the record and that the Board shall be entitled to set reasonable time limits upon such presentation.

(6) Decision of Board. It shall be the duty of the Board to render a decision within a reasonable time from the date of the submission of the record on appeal or the brief and argument of the appellant, whichever comes later.

(7) Rehearings. There shall be no application for rehearing. The decision of the Board, upon the appeal, shall be considered to be a final administrative determination.

(8) Extensions and Other Orders. The Board may, upon application of the appellant or the Board, and for good cause shown, grant extensions of time and make such other appropriate orders as shall be required to accommodate situations not covered in these rules.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 16, 2005; effective January 20, 2006.

Ala. Admin. Code r. 746-X-4-.08 Restoration Of A Refused, Revoked, Or Cancelled License

(1) Application of Restoration.

(a) The Board shall set a policy regarding restoration of license due to the refusal, revocation, or cancellation of such license. The application for restoration shall include both evidence that the individual meets the current requirements for license and the reasons justifying restoration. The Board may, by a majority vote, grant the application and restore the license.

(b) In the event the Board grants the application and deems it necessary, the applicant must thereafter take and successfully pass an examination approved by the Board.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003.

Ala. Admin. Code r. 746-X-4-.09 Conflict And Bias

(1) No Board member shall be entitled to vote in any disciplinary matter if the Board member is personally biased against the respondent or when such voting would violate the provisions of Code of Ala. 1975, §41-22-18.

(2) Any respondent in a disciplinary action who wishes to assert bias or conflict may do so by filing with the executive director at least three days before scheduled disciplinary hearing an affidavit asserting the disqualification together with the underlying factual bias for assertion.

(3) The Board shall consider the assertion of disqualification on the record as preliminary matter at the hearing before any other question is decided.

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003.

Ala. Admin. Code r. 746-X-4-A Appendix - Complaint Form (Repealed 9/8/11)

Appendix

Complaint Form

(Repealed 9/8/11)

History

• Author: Joseph C. Elliott, Glenn Crumpton
• Authority: Code of Ala. 1975, §34-25A-1-14.
• New Rule: Filed August 8, 2003; effective September 12, 2003. Repealed: Filed August 4, 2011; effective September 8, 2011.