New Mexico Administrative Code
Title 16 - OCCUPATIONAL AND PROFESSIONAL LICENSING
Chapter 15 - OCCUPATIONAL THERAPISTS
Part 5 - DISCIPLINARY PROCEEDINGS
Section 16.15.5.8 - CONDUCT OF HEARING REGULATIONS
Universal Citation: 16 NM Admin Code 16.15.5.8
Current through Register Vol. 35, No. 18, September 24, 2024
A. Opportunity for a Licensee or Applicant to have a Hearing: Pursuant to the Uniform Licensing Act, 61-1-1 to 61-1-33 NMSA 1978, every licensee or applicant shall be afforded notice and an opportunity to be heard before the Board shall have authority to take any action, the effect of which would be:
(1) to deny a
license after examination for any cause other than failure to pass an
examination or failure to meet educational or administrative requirements for
the issuance of a license;
(2) to
deny a license for which application has been duly made on the basis of
reciprocity;
(3) to withhold the
renewal of a license for any cause other than failure to pay the required
renewal fee;
(4) to suspend a
license; and
(5) to revoke a
license.
B. Limitations: Any action which would have the effect of denying, revoking, or suspending a license shall be governed by the Uniform Licensing Act, 61-1-1, et seq. NMSA 1978.
C. Complaint Procedures:
(1)
Inquiries Regarding Making a Complaint: A complaint may be
initiated by any person through a telephone call, a written complaint, or a
walk-in complaint presented to the Board office. Only those complaints that are
in writing on the official Occupational Therapy Complaint Form will be formally
addressed by the Board. The forms required for an official complaint can be
obtained from the Board office, Board of Examiners for Occupational Therapy,
P.O. Box 25101, Santa Fe, NM, 87504.
(2)
Procedures for Receipt of a
Complaint at the Board's Office: The Board Administrator, or any
member of the Board who may be appointed by the Board Chairperson, will act as
the Complaint Manager for the procedures outlined below. Upon receipt of a
written, signed complaint, or upon the Board's own action as initiated by a
vote of the majority of the members of the Board acting at a duly convened
meeting of the Board, if the Board has reasonable cause to believe that the
Occupational Therapy Act or the rules and regulations promulgated pursuant
thereto have been or are being violated, the Complaint Manager shall:
(a) log in the date the complaint is received
in the Board office;
(b) determine
that the subject of the complaint is a licensed occupational therapist (OT), a
licensed occupational therapy assistant (OTA), a person practicing on a
provisional permit or a person not licensed to practice;
(c) assign a complaint number and set up an
individual file. Complaint numbering shall begin in January of each
year;
(d) forward the complaint to
the professional board member who has been designated to review complaints
(Complaint Chairperson); and
(e)
send a certified letter to the complainant confirming receipt of the
complaint.
(3)
Review by the Complaint Committee:
(a) The Complaint Chairperson and Complaint
Manager will comprise the Complaint
Committee, and will review all written, signed complaints filed against a licensee. The Complaint Committee shall provide the subject of the complaint ("respondent") with a copy of the complaint within thirty (30) calendar days
of receipt of the complaint in the Board office, unless the Complaint Committee reasonably determines that disclosure of the complaint at that time will substantially and materially impair the integrity or efficacy of the investigation. Nondisclosure at the initial stage of the complaint process shall be the exception, rather than the rule.
(b) Unless it has been determined that
disclosure of the complaint will substantially and materially impair the
integrity or efficacy of the investigation, so that the investigation is
proceeding without notice to the respondent at the initial stage, the
respondent shall be provided twenty (20) calendar days from the date of
signature on the receipt of certified mail in which to file a written response
to the complaint, and shall be advised that he/she is required to provide all
documents and exhibits in support of his/her position.
(c) If the Complaint Committee has determined
that it is in the best interest of the investigation to withhold disclosure of
the complaint during the initial stage of the investigation, pursuant to
Subparagraph (a) of Paragraph (3) of Subsection C of 16.15.5.8 NMAC, above, a
copy of the complaint shall be provided to the respondent no later than at the
time of the issuance of a Notice of Contemplated Action ("NCA"), if
any.
(d) If the Complaint
Chairperson and the Complaint Manager determine that further information is
needed, the Committee may employ an investigator and/or experts to review
complaints as part of its investigation.
(e) The purpose of an investigation is to
gather further data regarding the complaint and to verify facts. All
complaints, unless dismissed for lack of jurisdiction, will be investigated.
Investigations may include: writing letters seeking further information; making
phone calls to administrators or supervisors; making phone calls to witnesses;
making onsite visits at facilities providing occupational therapy services and
requesting official patient records.
(f) Upon completion of the investigation, the
investigator will prepare a written report which includes its factual findings
and conclusions, all pertinent exhibits, and which makes recommendations to the
Board as to a course of action.
(g)
If the Complaint Chairperson and the Complaint Manager agree that the Board
does not have jurisdiction, both the complainant and respondent will be
notified in writing by certified letter. The letter will explain why the case
cannot be accepted for investigation and/or action (e.g., due to the statute of
limitations, or the nature of the complaint being a fee dispute, or there being
no violation of the Occupational Therapy Act or the rules and regulations
promulgated thereto), or it may note that the complaint can be referred to
another agency. The letter will come from the Board and may be signed by the
Board Chairperson or, upon delegation by the Board Chairperson, by the
Complaint Manager on behalf of the Chairperson.
D. Review by the Board:
(1) Unless the Complaint Committee dismisses
the complaint pursuant to Subparagraph (g) of Paragraph (3) of Subsection C of
16.15.5.8 NMAC above, it shall present its report and recommendations(s) to the
Board. The matter shall be referred to only by the assigned case number, and
the identities of the parties shall not be disclosed to the Board until and
unless an NCA is issued.
(2) The
Complaint Chairperson shall not vote on the decision regarding the disposition
of the complaint and shall not participate in any adjudicatory hearing or vote
on any disciplinary action against the applicant or licensee arising out of the
Complaint Committee's investigation. Decisions affecting complaints require a
quorum of the Board.
(3) Subject to
Paragraph (2) of Subsection D of 16.15.5.8 NMAC, above, after the Complaint
Committee's report has been voted upon by the Board, the case will be closed,
if the Board determines that there is not sufficient evidence or cause to issue
an NCA. A certified letter from the Board will be sent within thirty (30)
calendar days of the date of the Board's decision to both the complainant and
respondent. The letter will state the Board's action and reasons for its
decision.
(4) Subject to Paragraph
(2) of Subsection D of 16.15.5.8 NMAC, above, after the Complaint Committee's
report has been reviewed by the Board, the Board may vote to issue an NCA if it
determines there is sufficient evidence or cause to believe that the Respondent
has violated the Occupational Therapy Act, or the rules and regulations
promulgated pursuant to the Act.
(5) If the Board votes to issue an NCA, a
complete copy of the Complaint Committee's report, including exhibits, shall be
forwarded to the Attorney General's Office for assignment of a prosecuting
attorney for review and the Attorney General's decision as to whether there is
a sufficient basis to prosecute.
(6) Following the issuance of a notice of
contemplated action, the Board may (at its option) authorize a board member or
the prosecutor to confer with the applicant or licensee for the purpose of
seeking settlement of the complaint. Such settlement must be approved by a
quorum of the Board, must be with the consent of the applicant or licensee, and
shall include a knowing and intentional waiver by the applicant or the licensee
of his/her rights to hearing under the Uniform Licensing Act.
E. Disciplinary Hearings: All disciplinary hearings shall be conducted in accordance with the Uniform Licensing Act.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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