201 KAR 20:162 - Disciplinary proceedings
RELATES TO: KRS Chapter 13B, 314.011, 314.031, 314.071(4), 314.091, 314.161, 314.991
NECESSITY, FUNCTION, AND CONFORMITY: KRS 314.131(1) authorizes the Board of Nursing to promulgate administrative regulations to implement KRS Chapter 314. KRS 314.091(2) requires that an administrative hearing for the denial, limitation, probation, suspension, or revocation of the license of a registered or practical nurse be conducted in accordance with KRS Chapter 13B. KRS 314.091(8) authorizes the board, by administrative regulation, to provide for the recovery of costs of an administrative hearing. This administrative regulation establishes procedures for conducting an administrative hearing relating to disciplinary action.
Section 1. An administrative
hearing shall be conducted in accordance with KRS Chapter 13B.
Section 2. Composition of the Hearing Panel.
(1)
(a)
Except as established in paragraph (b) of this subsection, a disciplinary
action shall be heard by a hearing panel consisting of two (2) members of the
board, one (1) of whom shall be a registered nurse, and a hearing officer, who
shall be:
1. An assistant attorney general;
or
2. Other attorney appointed by
the board.
(b) A hearing
officer and one (1) member of the board may conduct a hearing for consideration
of:
1. Reinstatement of a revoked or suspended
license; or
2. Removal of a license
from probationary status.
(2) A board member shall not sit on a panel
or participate in the adjudication of a matter in which the member has:
(a) Discussed the merits of the action with
agency staff;
(b) Personal
knowledge of the facts giving rise to the disciplinary action; or
(c) Participated in the investigation of a
disciplinary action.
(3)
The hearing shall be transcribed by a court stenographer or video
recorded.
Section 3.
Response to Charges. The licensee or applicant shall file with the board a
written answer to the specific allegations contained in the notice of charges
within twenty (20) days of receipt of the charges. An allegation not properly
answered shall be deemed admitted. Failure to file an answer may result in the
issuance of a default order pursuant to
KRS
13B.080(6). The hearing
officer shall for good cause permit the late filing of an answer.
Section 4. Rulings by a Hearing Officer.
(1) The hearing officer shall rule upon each
objection or motion, including an objection to evidence.
(2) A decision of the hearing officer may be
overridden by a unanimous vote of the board members of the hearing
panel.
Section 5.
Recommendation by the Hearing Panel.
(1) Upon
the conclusion of the hearing, the panel shall retire into closed session for
purpose of deliberations. Each board member of the panel shall be eligible to
cast one (1) vote. In case of a tie vote, the tie shall be broken by the
hearing officer.
(2) At the
conclusion of the panel's deliberations, it shall propose an order based upon
the evidence presented. The hearing officer shall draft a recommended order, as
required by
KRS
13B.110(1) that shall be:
(a) Consistent with the panel's
deliberations; and
(b) Submitted to
the full board.
Section
6. Continuances; Proceedings in Absentia.
(1) The board shall not postpone a case that
has been scheduled for a hearing absent good cause. A request by a licensee or
applicant for a continuance shall be considered if communicated to the board
reasonably in advance of the scheduled hearing date and based upon good
cause.
(2) The decision of whether
or not to grant a continuance shall be made by the hearing officer.
(3) The burden shall be upon the licensee or
applicant to be present at a scheduled hearing.
(4) Failure to appear at a scheduled hearing
for which a continuance has not been granted in advance shall be deemed a
waiver of the right to appear and the hearing shall be held as
scheduled.
Section 7.
Hearing Costs.
(1) If the order of the board
is adverse to a licensee or applicant or if the hearing is scheduled at the
request of a licensee or applicant for relief from sanctions previously imposed
by the board pursuant to the provisions of KRS Chapter 314, the board may
impose the following costs:
(a) The cost of
stenographic services;
(b) The cost
of the hearing officer as determined by subsection (2) of this section;
and
(c) Other costs listed in
subsection (3) of this section as applicable.
(2) The cost of the hearing officer shall be
determined as established in paragraphs (a) through (c) of this subsection. The
cost of a:
(a) Disciplinary hearing shall be
$400 per day;
(b) Reinstatement
hearing shall be $350; and
(c)
Default shall be $300.
(3) Other costs may include:
(a) Expert witness costs, including
travel;
(b) Travel for other
witnesses;
(c) Document
reproduction costs; and
(d) The
cost of a certified copy of laboratory testing records.
Section 8. Reconsideration of
Default Orders.
(1) A default order issued by
the board may be reconsidered.
(2)
The party in default shall submit a written motion to the hearing officer
requesting reconsideration.
(3) The
hearing officer shall schedule a hearing on the motion for reconsideration. The
hearing officer may order that the default order be set aside if the party in
default presents good cause.
(4) If
a default order is set aside, the provisions of
201 KAR
20:161 shall apply.
Section 9. Prescribing or Dispensing
Controlled Substance Cases.
(1) An
investigation pertaining to prescribing or dispensing of a controlled substance
shall produce a charging decision by the board within 120 days of the receipt
of the complaint unless the circumstances of a particular complaint make it
impossible to timely produce the charging decision.
(2) The board may hold an investigation
pertaining to prescribing or dispensing of a controlled substance in abeyance
for a reasonable period of time in order to permit a law enforcement agency to
perform or complete essential investigative tasks, following a request by the
requesting law enforcement agency.
(3) If an investigation pertaining to
prescribing or dispensing of a controlled substance does not produce a charging
decision within 120 days of the receipt of the complaint, the investigative
report shall plainly state the circumstances of that particular investigation
or complaint that made timely production of a charging decision
impossible.
Section 10.
Change in Licensure Status.
(1) Pursuant to
the Nurse Licensure Compact,
KRS
314.475, if a nurse whose primary state of
residence is Kentucky and who holds a Kentucky license with multistate
privileges incurs a disqualifying event, the license shall be converted to a
single state license valid only in Kentucky.
(2) The disqualifying events that may cause
this change in status shall be:
(a) Conviction
or found guilty of or entered into an agreed disposition of a felony
offense;
(b) Conviction or found
guilty of or entered into an agreed disposition of a misdemeanor offense
related to the practice of nursing;
(c) Current enrollment in an alternative
program; or
(d) An encumbered
nursing license or privilege to practice due to disciplinary action.
(3)
(a) The board shall inform the nurse in
writing of its intent to change the status of the Kentucky license.
(b) The nurse may request an administrative
hearing on this action. A request shall be made in writing to the board within
twenty (20) days.
(c) Failure to
request an administrative hearing within twenty (20) days shall constitute a
waiver of the right to a hearing.
(4) The procedure established in this section
shall not be in lieu of but may be in addition to any potential disciplinary
action the board may seek based on the disqualifying event.
Notes
STATUTORY AUTHORITY: KRS 314.091(8), 314.131(1)
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