Current through Reg. 49, No. 38; September 20, 2024
(a) General
statement. In a contested case before the Board, proceedings shall be governed
by the Administrative Procedure Act (APA), except as specifically provided in
the Optometry Act. In any contested case, opportunity shall be afforded to all
parties to respond and present evidence and argument on all issues involved.
Unless precluded by law, informal disposition may be made of any contested case
by stipulation, agreed settlement, consent order, default, refund of
examination fees, remedial plan or dismissal.
(b) Informal disposition of contested case.
Prior to the imposition of disciplinary sanctions, remedial plan, or
administrative penalties against a respondent (a licensee or a person issued a
cease and desist order), the respondent shall be offered an opportunity to
attend an informal conference and show compliance with all requirements of law,
in accordance with the APA.
(1) Informal
conferences shall be attended by the Executive Director, the Board's legal
counsel, the two members of the Investigation-Enforcement Committee, a public
member, and other representatives of the Board as the Executive Director and
legal counsel may deem necessary for the proper conduct of the conference. The
respondent and/or the authorized representative may attend the informal
conference and shall be provided an opportunity to be heard.
(2) In any case where charges are based upon
information provided by a person who filed a complaint with the Board
(complainant), the complainant may attend the informal conference, and shall be
provided with an opportunity to be heard. Nothing herein requires a complainant
to attend an informal conference.
(3) Notice of the informal conference shall
include:
(A) a statement of the legal
authority, jurisdiction, and alleged conduct under which the enforcement action
is based, with a reference to the particular section(s) of the statutes and
rules involved;
(B) an offer for
the respondent to attend an informal conference at a specified time and place
and show compliance with all requirements of law, in accordance with Chapter
2001 of the Administrative Procedure Act;
(C) a statement that the respondent has an
opportunity for a hearing before the State Office of Administrative Hearings on
the allegations; and
(D) the
following statement in capital letters in 12 point boldface type: FAILURE TO
RESPOND TO THE ALLEGATIONS, BY EITHER PERSONAL APPEARANCE AT THE INFORMAL
CONFERENCE OR IN WRITING, WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE
AND THE RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY
DEFAULT. The notice shall be served by delivering a copy to the respondent or
licensee in person, by courier receipted delivery, or by certified or
registered mail, return receipt requested, to the licensee's last known address
of record as shown by agency records, not less than 10 days prior to the date
of the conference.
(4)
The respondent shall respond by either personal appearance at the informal
conference or in writing no later than the date of the informal conference. If
the respondent chooses to respond in writing, the response shall admit or deny
each of the allegations. If the respondent intends to deny only a part of an
allegation, the respondent shall specify so much of it is true and shall deny
only the remainder. The response shall also include any other matter, whether
of law or fact, upon which the respondent intends to rely for his or her
defense. If the respondent fails to respond to the notice specified in this
subsection, the matter will be considered as a default case and the respondent
will be deemed to have:
(A) admitted all the
factual allegations in the notice specified in this subsection;
(B) waived the opportunity to show compliance
with the law;
(C) waived notice of
a hearing;
(D) waived the
opportunity for a hearing on the allegations; and
(E) waived objection to the recommended
sanctions made at the informal conference.
(5) The Investigation-Enforcement Committee
may recommend that the Board enter a default order, based upon the allegations
set out in the notice specified in this subsection, adopting the recommended
sanctions made at the informal conference. Upon consideration of the case, the
Board may enter a default order under §2001.056 of the Administrative
Procedure Act or direct that the case be set for a hearing at the State Office
of Administrative Hearings.
(6) Any
default judgment granted under this section will be entered on the basis of the
factual allegations in the notice and upon proof of proper notice to the
respondent's address of record as specified in paragraph (3) of this
subsection.
(7) A motion for
rehearing which requests that the Board vacate its default order under this
section shall be granted if the motion presents convincing evidence that the
failure to respond to the notice specified in this subsection was not
intentional or the result of conscious indifference, but due to accident or
mistake, provided that the respondent has a meritorious defense to the factual
allegations contained in the notice specified in this subsection and the
granting thereof will not result in delay or injury to the public or the
Board.
(8) Informal conferences
shall not be deemed to be meetings of the Board and no formal record of the
proceedings at the conferences shall be made or maintained.
(9) The Investigation-Enforcement Committee
shall consider the Penalty Schedule in §
277.6 of this title to determine
the parameters of any administrative fine or penalty to recommend to the
respondent and the Board. The Investigation-Enforcement Committee may recommend
a settlement to the respondent that includes an agreed order to refund all or
part of the examination fee paid by the complainant to the respondent. This
settlement must be approved by the Board pursuant to subsection
(b)(10).
(10) Any proposed order
shall be presented to the Board for its review. At the conclusion of its
review, the Board shall approve, amend, or disapprove the proposed order.
Should the Board approve the proposed order, the appropriate notation shall be
made in the minutes of the Board and the proposed order shall be entered as an
official action of the Board. Should the Board amend the proposed order, the
Executive Director shall contact the respondent to seek concurrence. If the
respondent does not concur, the provisions of the next sentence shall apply.
Should the Board disapprove the proposed order, the case shall be rescheduled
for purposes of reaching an agreed order or in the alternative forwarded to the
State Office of Administrative Hearings for formal action.
(c) Formal disposition of a contested case.
All contested cases not resolved by informal conference shall be referred to
the State Office of Administrative Hearings.
(1) Notice. The respondent shall be entitled
to reasonable notice of not less than 10 days. Notice shall include the matters
specifically required by the APA, to wit:
(A)
a statement of the time, place, and nature of the hearing;
(B) a statement of the legal authority and
jurisdiction under which the hearing is being held;
(C) a reference to the particular section of
the Act and rules involved; and
(D)
a short and plain statement of the matters asserted.
(2) Service of notice. The notice of hearing
and a copy of the formal complaint shall be served on the respondent's last
known address at least 10 days prior to the hearing. Service on the respondent
shall be complete and effective if the document to be served is sent by
registered or certified mail to the respondent at the address shown on the
respondent's annual renewal certificate.
(3) Filing of documents. All pleadings and
motions relating to any contested case pending before the State Office of
Administrative Hearings shall be filed with the State Office of Administrative
Hearings. They shall be deemed filed only when actually received.
(4) Motion for continuance. Continuances may
be granted by the State Office of Administrative Hearings in accordance with
procedural rules established by that agency.
(5) Transcription. Proceedings, or any part
of them, must be transcribed on the written request of any party. The agency
may pay the cost of the transcript or assess the cost to one or more
parties.
(6) Discovery. Requests
for the issuance of subpoenas, requests for depositions and for production of
documents, and other discovery matters shall be governed by the
APA.
(d) If, after
receiving notice of hearing, a party fails to appear in person or by
representative on the day and time set for hearing, the Administrative Law
Judge may proceed in that party's absence and, as authorized by applicable law,
may issue a proposal for decision or order against the defaulting party in
which the factual allegations against that party in the notice of hearing are
deemed admitted as true without the requirement of submitting additional
proof.
(e) Any default judgment
entered under this section shall be issued only upon adequate proof that proper
notice was provided to the defaulting party, and such notice includes
disclosure, in 12 point, bold-faced type: FAILURE TO RESPOND TO THE
ALLEGATIONS, BY EITHER PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN
WRITING, WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE
RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT.
Proper notice may be established by proof that the Board complied with
subsection (c)(1) and (2) of this section.
(f) This section does not preclude the agency
from informally disposing of a case by default under the agency's statute or
rules in the event the respondent fails to file a timely written response or
other responsive pleading required by the agency's statute or rules.
