Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO:
KRS 309.351,
309.355(1), (2),
(6),
309.362
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
309.355(1) requires the
board to regulate the practice of massage therapy.
KRS
309.355(2) requires the
board to investigate every alleged violation and take appropriate action. This
administrative regulation establishes the procedure for filing a complaint and
the action to be taken by the board on a complaint and disciplinary action of a
licensee or applicant in violation of
KRS 309.351 or
309.362.
Section 1. Definitions.
(1) "Complaint committee" means a committee
of the board that:
(a) Reviews an initiating
complaint; and
(b)
1. Recommends dismissal or further
investigation of the complaint; or
2. Determines the existence of sufficient
evidence to bring a formal complaint.
(2) "Formal complaint" means a formal
administrative pleading authorized by the board that sets forth a charge
against a licensee or applicant and commences a formal disciplinary proceeding
under KRS Chapter 13B.
(3)
"Initiating complaint" means a written complaint alleging a violation of
KRS
309.350 through
309.364.
(4) "Respondent" means the person against
whom an initiating complaint or formal complaint has been made.
Section 2. Initiating Complaint.
(1) A complaint may be initiated by:
(a) An individual;
(b) A state or government agency;
(c) Another member of the massage therapy
profession; or
(d) The
board.
(2) An initiating
complaint shall be made in writing to the board and received in the board
office.
(3) The board may conduct
an investigation on its own initiative, without receipt of a complaint, if the
board has reason to believe that there may be a violation of
KRS
309.350 through
309.364,
or 201 KAR Chapter 42.
(4) A
certified copy of a court record for conviction of a misdemeanor or felony
shall be considered a valid reason for an initiating complaint.
(5) Any complaint shall be in writing,
identify the complainant, including name and contact information, and contain
specific details regarding the complaint. Complaints without the required
information will not be processed. The Form to File a Complaint or Unlicensed
Activity Report may be used for this purpose.
Section 3. Procedure Upon Receipt of
Initiating Complaint.
(1) Upon receipt of the
initiating complaint, the board office shall send a copy of the initiating
complaint to the respondent at the respondent's last address of record with the
board.
(2) The respondent shall
file a response to the initiating complaint with the board within twenty (20)
days after the board mails the initiating complaint to the
respondent.
(3) The allegations in
an initiating complaint shall be considered true if the respondent fails to
respond to the initiating complaint in a timely fashion.
Section 4.
(1) The complaint committee shall:
(a) Review the initiating complaint and the
response filed by the respondent at its next meeting; and
(b) Recommend one (1) of the following
options to the board at the board's next meeting:
1. Dismissal;
2. Further investigation;
3. Issuance of a formal complaint;
or
4. Referral to another
government agency.
(2) A complaint committee member having any
known conflict of interest shall be recused from the matter and disclose the
existence of the conflict in a regular board meeting.
Section 5. Board Action upon Recommendation
of Complaint Committee. At the board's next meeting following review by the
complaint committee, the board shall review the committee's recommendations and
shall accept or reject the recommendations in whole or in part.
Section 6. Dismissals. The complainant and
respondent shall be notified if a case is dismissed.
Section 7. Investigations.
(1) If investigation is warranted, the board
shall appoint one (1) of its members or an agent or representative of the board
to conduct an investigation of the complaint.
(2) In its investigation, the board may be
assisted by:
(a) Board staff;
(b) A board agent; or
(c) The Office of the Attorney
General.
Section
8. Formal complaints. If the board finds that sufficient evidence
exists to file a formal complaint, the board shall:
(1) Resolve the case informally by agreed
order; or
(2) File a formal
complaint, in accordance with KRS Chapter 13B.
Section 9. Settlement by Informal
Proceedings.
(1) The board, through counsel,
may enter into informal discussions or negotiations with the respondent for the
purpose of appropriately dispensing with the matter.
(2) An agreed order or settlement reached
through informal proceedings shall be approved by the board and signed by the
chair of the board, the respondent, and the respondent's attorney. A copy shall
be placed in the licensee's file and a copy shall be mailed to the
complainant.
(3) The board may
employ mediation as a method of resolving the matter informally.
Section 10. Procedures for
Disciplinary Hearings.
(1) All procedures for
disciplinary hearings shall conform to KRS Chapter 13B.
(2) Testimony to be considered by the board,
hearing panel, or hearing officer, if any, may be taken by deposition. A party
or witness may be allowed to testify by deposition, rather than attend the
hearing, upon a showing of inability to attend and a showing that other parties
shall have an opportunity to cross-examine at the deposition. The presiding
officer or hearing officer, if any, shall rule upon motions to allow testimony
to be considered by deposition, subject to review and approval by the
board.
(3) The presiding officer or
hearing officer, if any, may order that at least five (5) days prior to the
hearing, each party shall file a summary of each witness' expected
testimony.
(4) The board may
request recovery of administrative costs and fees incurred by the board in
processing, investigating, or administering a complaint to be paid by a
respondent. The request shall be submitted by motion to an administrative
hearing officer assigned under
KRS 13B.080 to
preside over a KRS Chapter 13B hearing of the complaint. The request may also
be made to a circuit court judge presiding over an action for injunction filed
by the board pursuant to
KRS
309.355(6).
Section 11. Final Disposition.
Upon reaching a decision, the board shall notify the respondent in writing, by
certified mail or personal service, of its final disposition of the matter and
the complainant shall be notified by regular mail.
Section 12. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "Form to File a Complaint",
June 2021; and
(b) "Unlicensed
Activity Report", June 2021.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department of
Professional Licensing, 500 Mero Street, Frankfort, Kentucky 40601. The board's
Web site address is:
https://bmt.ky.gov/.
STATUTORY AUTHORITY:
KRS
309.355(3)
