Current through Register Vol. 50, No. 9, September 20, 2024
A.
Within 30 calendar days after receipt of the department's notice of violation
or the notice of the results of an informal dispute resolution, the nurse aide
may request an administrative hearing.
1. The
request for an administrative hearing must be made in writing to the
department's Division of Administrative Law or successor entity.
2. The request shall contain a statement
setting forth the specific charges with which the nurse aide disagrees and the
reasons for this disagreement.
3.
Unless a timely and proper request is received by the Division of
Administrative Law or successor entity, the findings of the department shall be
considered a final and binding administrative determination.
a. Notification of the finding of abuse,
neglect and/or misappropriation shall then be sent to the Nurse Aide Registry
to be recorded.
B. When an administrative hearing is
scheduled, the Division of Administrative Law or successor entity shall notify
the nurse aide, his/her representative and the agency representative in
writing.
1. The notice shall be mailed no
later than 15 calendar days before the scheduled date of the administrative
hearing and shall contain the:
a. date of the
hearing;
b. time of the hearing;
and
c. the place of the
hearing.
C.
The administrative hearing shall be conducted by an administrative law judge
from the Division of Administrative Law or successor entity as authorized by
the Administrative Procedure Act,
R.S.
49:950 et seq., and according to the
following procedures.
1. An audio recording of
the hearing shall be made.
2. A
transcript shall be prepared and reproduced at the request of a party to the
hearing, provided he bears the cost of the copy of the transcript.
3. Testimony at the hearing shall be taken
only under oath, affirmation or penalty of perjury.
4. Each party shall have the right to:
a. call and examine parties and
witnesses;
b. introduce
exhibits;
c. question opposing
witnesses and parties on any matter relevant to the issue, even though the
matter was not covered in the direct examination;
d. impeach any witness regardless of which
party first called him to testify; and
e. rebut the evidence against
him/her.
5. Any relevant
evidence shall be admitted if it is the sort of evidence upon which responsible
persons are accustomed to rely on in the conduct of serious affairs, regardless
of the existence of any common law or statutory rule which might make the
admission of such evidence improper over objection in civil or criminal
actions.
a. Documentary evidence may be
received in the form of copies or excerpts.
6. The administrative law judge may question
any party or witness and may admit any relevant and material
evidence.
7. Each party has the
burden of proving whatever facts he/she must establish to sustain his/her
position.
a. The burden of producing evidence
to substantiate the written allegation(s) shall be on the department and the
provider of services.
b. When the
charge of abuse, neglect or misappropriation is substantiated, the nurse aide
may not rest on the mere denial in his/her testimony and pleading(s) but must
set forth specific facts and produce evidence to disprove or contest the
charge(s).
D.
Any party may appear, and be heard, at any appeals proceeding through an
attorney or a designated representative. The representative shall have a
written authorization to appear on behalf of the provider.
1. A person appearing in a representative
capacity shall file a written notice of appearance on behalf of a provider
identifying:
a. his/her name;
b. address;
c. telephone number; and
d. the party being represented.
E. At the conclusion of
the administrative hearing, the administrative law judge shall:
1. take the matter under advisement;
and
2. shall prepare a written
proposed decision which will contain:
a.
findings of fact;
b. a
determination of the issues presented;
c. a citation of applicable policy and
regulations; and
d. an
order.
F. The
written proposed decision is provided to the secretary of the department. The
secretary may:
1. adopt the proposed
decision;
2. reject the proposed
decision based upon the record; or
3. remand the proposed decision to the
administrative law judge to take additional evidence:
a. If the proposed decision is remanded, the
administrative law judge shall submit a new proposed decision to the
secretary.
G.
The decision of the secretary shall be final and binding upon adoption, subject
only to judicial review by the courts. A copy of the decision shall be mailed
to the nurse aide at his/her last known address and to any representative
thereof.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
36:254 and P.L.
100-203.
