Current through Register Vol. 35, No. 18, September 24, 2024
An investigation may be instituted by the board upon the
receipt of a written complaint filed by any person, including any member of the
board.
A. Written Complaint Required.
A complaint filed with the board will be received by the board administrator
who will process the complaint and determine how the complaint will be handled.
(1) In cases where it is clearly evident that
the complaint does not fall within the board's statutory authority or
jurisdiction, the board administrator will not process the complaint and will
inform the complainant of the reasons.
(2) If the complaint appears to contain
violations of the board's statute or its rules and regulations, or if the
complaint is not a complicated one, the administrator may present the processed
complaint to the entire board in a redacted form.
(3) If the complaint is lengthy, or if it is
unclear or questionable as to whether there may have been violations of the
board's statute or its rules and regulations, the administrator shall refer it
to the board's standards of practice committee for review and
consideration.
(4) The board may
provide the respondent with a copy of the complaint and allow a reasonable time
for the respondent to reply to the allegations in the complaint.
(5) The foregoing notwithstanding, the board
will not be required to provide the respondent with a notice of the complaint
filing, or a copy of the complaint, or any related investigatory evidence prior
to the notice of contemplated action if it is determines that disclosure may
impair, impede, or compromise the efficacy or integrity of an investigation
into the matter.
B.
Standards of practice committee appointed. On an annual basis, the board
chairperson shall appoint a member or members of the board to a standards of
practice committee.
(1) The standards of
practice committee shall review all documentation referred to it by the board
administrator regarding a subject complaint.
(2) The standards of practice committee may
employ an investigator or other persons determined to be necessary in order to
assist in the processing and investigation of the complaint.
(a) The standards of practice committee may
be authorized by the board to employ such persons without prior approval of the
full board.
(b) In such cases, the
board administrator will contract for any such required services once budgetary
availability is determined.
(3) Upon completion of its investigation the
standards of practice committee shall present a summary of the subject
complaint to the board with proposed recommendations concerning the proper
disposition of the subject complaint.
(4) Upon review, the board shall vote upon
the proposed recommendations and either uphold, reverse, or modify the
standards of practice committee's recommendations.
(5) The standards of practice committee with
the assistance of board counsel may draw up a pre-NCA settlement or mediation
agreement proposal with the respondent as a means of resolving the complaint
and enter into a proposed settlement agreement with the respondent as a means
of resolving a complaint without having to go through the NCA and formal
hearing process. However, final approval of the settlement or mediation
agreement must be made by the full board prior to execution of the
agreement.
C. Standards
of practice committee recused from participation in further action: Members of
the standards of practice committee who participate in the preparation of
recommendations on complaints shall not participate further in any actions
initiated by the board against the applicant or the licensee(s) who is the
subject of the complaint.
D. Board
action: In accordance with those provisions contained within the Uniform
Licensing Act, the board may refuse to issue, suspend, or revoke any license
upon finding, after a hearing, that the licensee or applicant for licensure has
violated those provisions as set forth in Section
61-2-13
of the Optometry Act or those provisions found to constitute unprofessional
conduct under Part 21of the board rules and regulations (16.16 NMAC).
(1) If the board determines that it lacks
jurisdiction, or that there is insufficient evidence or cause to issue a notice
of contemplated action, the board may vote to dismiss or close the
complaint.
(2) If the board
determines that there is sufficient evidence or cause to issue a notice of
contemplated action, it may vote to refer the complaint to the attorney
general's office for possible prosecution in accordance with the provisions
contained in the Uniform Licensing Act.
(3) The board may take any other action with
regard to a complaint which is within its authority and which is within the
law, including referring the complaint to the attorney general and/or the
district attorney for prosecution of persons alleged to be practicing without a
valid license.
(4)
[RESERVED]
(5) Prehearing motions:
The board may appoint a hearing or presiding officer to decide non-dispositive
motions filed prior to a hearing.
(6) [RESERVED]
(7) Settlement agreements: Following the
issuance of a notice of contemplated action, the board may enter into a
settlement or mediation agreement with the respondent as a means of resolving a
complaint.
(8) Settlement officer:
To facilitate approval of settlement agreements at times when it is not
feasible to convene a full board meeting, the board may designate one of its
members as a "settlement officer", and authorize that member to approve
settlements in appropriate cases.
E. Costs of disciplinary proceedings:
Licensees shall bear all costs of disciplinary proceedings unless they are
excused by the board from paying all or part of the fees, or if they prevail at
the hearing and an action specified in Section
61-1-3
of the Uniform Licensing Act is not taken by the board.
F. Private cause of action: Neither the
action nor inaction of the board on any complaint shall preclude the initiation
of any private cause of action by the complainant.
G. License returned to the board: The wall
license, renewal license, and therapeutic certificates issued by the board must
be returned to the board subsequent to disciplinary revocation or suspension.
The wall license, renewal license, and therapeutic certificates must be
returned to the board in person or by registered mail no later than twenty (20)
days after the suspension or revocation order by the board.
H. ULA protection from liability for
complainant: There shall be no liability on the part of, and no action for
damages against, a person who provides information to the board in good faith
and without malice in the reasonable belief that such information is accurate.
A licensee who directly or through an agent intimidates, threatens, injures or
takes any adverse action against a person for providing information to the
board shall be subject to disciplinary action.
I. Federal fraud and abuse databank: In
accordance with federal requirements imposed by the enactment of the Health
Insurance Portability and Accountability Act of 1996, also known as the
Kassebaum-Kennedy bill, the board shall report any final adverse actions taken
against a licensee to the federal fraud and abuse databank established under
that act.
(1) The board may report to the
databank disciplinary actions taken by the board that do not contain an
admission or finding of guilt or liability against applicants or
licensees.
(2) The board must
report to the databank disciplinary actions taken by the board that do contain
an admission or finding of guilt or liability against applicants or
licensees.
J. National
optometric database. All final adverse actions shall also be reported by the
board to the association of regulatory boards of optometry (ARBO) national
optometric database (NODB).
(1) The board may
report to the databank disciplinary actions taken by the board that do not
contain an admission or finding of guilt or liability against applicants or
licensees.
(2) The board must
report to the databank disciplinary actions taken by the board that do contain
an admission or finding of guilt or liability against applicants or
licensees.
