TITLE
16 OCCUPATIONAL AND
PROFESSIONAL LICENSING
CHAPTER
20 PHYSICAL THERAPISTS
PART
11 DISCIPLINARY PROCEEDINGS
16.20.11.1 ISSUING
AGENCY: New Mexico Physical Therapy
Board.
[16.20.11.1
NMAC - N, 1-12-08]
16.20.11.2 SCOPE: All individuals who wish to practice physical
therapy in the state of New Mexico.
[16.20.11.2
NMAC - N, 1-12-08]
16.20.11.3 STATUTORY
AUTHORITY: This part is adopted
pursuant to the Physical Therapy Act, NMSA 1978, Sections 61-12D-5C, 61-12D-13,
61-12D-14 and 61-12D-15.
[16.20.11.3
NMAC - N, 1-12-08]
16.20.11.4 DURATION: Permanent.
[16.20.11.4
NMAC - N, 1-12-08]
16.20.11.5 EFFECTIVE
DATE: January 12, 2008, unless a
later date is cited at the end of a section.
[16.20.11.5
NMAC - N, 1-12-08]
16.20.11.6 OBJECTIVE: The objective of Part 11 of Chapter 20 is to
establish the procedures for filing complaints and taking disciplinary actions
against licensed physical therapists and physical therapist assistants, applicants
for such licensure and unlicensed persons engaging in the practice of physical
therapy.
[16.20.11.6
NMAC - N, 1-12-08; A, 9-30-14]
16.20.11.7 DEFINITIONS:
A. “Complaint” means a sworn written complaint, filed with
the board.
B. “Complaint committee” means the committee consisting of a
member of the board appointed by the chairperson and the board administrator.
C. “Complainant” means the complaining party who has filed a
complaint with the board.
D. “Notice of contemplated action” means the administrative
process used by the board for a licensee, registrant or applicant for licensure
or registration to be afforded notice and an opportunity to be heard in a
formal hearing before the board, before the board has authority to take any
action which would result in denial, suspension,
revocation, restriction, probation, monitoring, censuring, etc., of a license,
registration, application or licensure or registration.
E. “Respondent” is the party against whom a complaint is
filed.
[16.20.11.7
NMAC - N, 1-12-08]
16.20.11.8 COMPLAINT
PROCEDURES: A complaint may be
initiated by any person through a telephone call, in writing or by visiting the
board office. Only complaints written on
the official physical 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 physical therapy, P.O. Box 25101, Santa Fe, NM, 87504. Complaints must contain factual allegations,
constituting the alleged violations of any provisions of the Physical Therapy
Act.
[16.20.11.8
NMAC - N, 1-12-08]
16.20.11.9 GENERAL
PROVISIONS:
A. A complaint may be initiated in writing by any person.
B. Complaints must be legible, either printed in black ink
or typed.
C. Complaints must contain factual allegations, constituting
the alleged violations of any provisions of the Physical Therapy Practice Act
and 16.20 NMAC.
[16.20.11.9
NMAC - N, 1-12-08]
16.20.11.10 PROCEDURES
FOR RECEIPT OF A COMPLAINT:
A. The board’s designee will maintain a written log of all
complaints received which records at a minimum, the date the complaint was
received, and name, addresses of the complainant(s) and respondent(s).
B. Upon receipt of a complaint the board’s designee will:
(1) log in the
date the complaint was received;
(2) determine
whether the respondent is licensed, registered or an applicant for licensure or
registration with the board;
(3) assign a
complaint number and create an individual file.
Complaint numbering shall begin in January of each year;
(4) send complainant written
acknowledgment of receipt of the complaint;
(5) immediately
forward the complaint to the complaint committee; the complaint committee chair
will be responsible for convening the complaint committee to review the
complaint(s).
[16.20.11.10
NMAC - N, 1-12-08]
16.20.11.11 COMPLAINT
COMMITTEE:
A. The board chair will appoint a complaint committee
consisting of at least one member of the board, who will chair the
committee. The board chair may also
appoint to the complaint committee the board administrator and/or a complaint
manager.
B. The complaint committee will handle complaints in a
confidential manner as required by law.
C. The complaint committee will review all complaints
received by the board and make recommendations for disposition of the complaint
to the full board in executive session.
D. No complaint committee meeting will be held without the
presence of the board member.
E. A complaint committee member who believes he or she is
not capable of judging a particular complaint fairly on the basis of its own
circumstances will not participate; another professional member will be
appointed by the chair to serve as committee chair for the complaint being
considered.
F. For any complaint which the complaint committee
reasonably anticipates may be referred to the board for consideration of the
issuance of a notice of contemplated action, the respondent will be provided a
copy of the complaint and will be allowed a reasonable time in which to respond
to the allegations in the complaint.
G. The foregoing notwithstanding, the complaint committee
will not be required to provide the respondent with a copy of the complaint, or
with notice of the filing of a complaint or any related investigation, prior to
the issuance of a notice of contemplated action if the committee determines
that disclosure may impair, impede or compromise the efficacy or integrity of
the investigation.
H. If the complaint committee determines that further
information is needed, it may issue investigative subpoenas pursuant to the
Uniform Licensing Act; it may employ an investigator, experts, or other persons
whose services are determined to be necessary to assist in the processing and
investigation of the complaint. The
complaint committee will have independent authority to employ such persons
without prior approval of the board. The
board administrator will determine budgetary availability and will contract for
investigative services.
I. Upon completion of its review or investigation of a
complaint, the complaint committee will present a summary of the case to the
board for the purpose of enabling the board to decide whether to proceed with
the case or to dismiss the case. A complaint
number will identify the summary without identifying the complainant(s) or
respondent(s) by name.
[16.20.11.11
NMAC - N, 1-12-08; A, 9-30-14]
16.20.11.12 BOARD
ACTION:
A. If the board determines that it lacks jurisdiction or
that there is not sufficient evidence or cause to issue a notice of
contemplated action, the case shall be closed.
B. The board’s designee shall send a letter of the board’s
decision to both the complainant and respondent. The letter will state the board’s actions and
the reasons for its decision.
C. If the board determines that there is sufficient evidence
or cause to issue a notice of contemplated action, the board may vote to issue
a notice of contemplated action.
D. The board’s designee shall forward a complete copy of the
complaint committee’s report, including exhibits to the attorney general’s
office for assignment of an administrative prosecutor.
E. 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 for injunctive proceedings, or
referring the complaint to district attorneys for prosecution of persons
alleged to be practicing physical therapy without a proper license or
registration.
F. Any board member who believes that he/she is not capable
of judging a particular complaint fairly on the basis of its own circumstances
shall not participate in the decision to issue a notice of contemplated action
and will not participate in the hearing, deliberation, or decision of the
board.
G. Where the appearance of impropriety or any violation of
the government conduct act may occur a board member shall recuse
himself/herself from any hearing, deliberation or decision of the board.
H. A member of the complaint committee will not participate
in the decision whether to issue a notice of contemplated action, other than by
making a recommendation to the board whether to issue a notice of contemplated
action, and shall not participate in the hearing, deliberation, or decision of
the board.
[16.20.11.12
NMAC - N, 1-12-08]
16.20.11.13 SETTLEMENT
AGREEMENT:
A. The board may enter into a settlement with the licensee
or registrant as a means of resolving the complaint.
B. Any proposed settlement agreement must be approved by the
board, and must also be approved by the respondent, upon a knowing and
intentional waiver by the respondent of his/her right to a hearing as provided
by the Uniform Licensing Act.
C. The licensee’s attorney must sign the settlement
agreement or the licensee must acknowledge that he or she has been advised to
seek the advice of an attorney.
[16.20.11.13
NMAC - N, 1-12-08; A, 9-30-14]
16.20.11.14 NOTICE
OF CONTEMPLATED ACTION:
A. All disciplinary proceedings will be conducted in
accordance with the Uniform licensing Act.
B. The board chair, or his/her designee, will serve as
hearing officer for disciplinary proceedings for the purpose of administering
pre-hearing procedural matters. The
hearing officer will be fully authorized to make all necessary procedural
decisions on behalf of the board, including, but not limited to, matters
related to discovery, continuances, time extensions, amendment, pre-hearing
conferences, and proposed findings of fact and conclusions of law.
C. The hearing officer may make such orders as he or she
determines may be necessary to implement the authority conferred by Subsection
B of 16.20.11.14 NMAC above, including but not limited to discovery schedules,
pleading schedules, and briefing schedules.
D. No party will engage in ex-parte communications with the
hearing officer or any member of the board in any matter in which a notice of contemplated
action has been issued.
E. Licensees and registrants who have been found culpable
and sanctioned by the board will be responsible for the payments of all costs
of the disciplinary proceedings.
F. Following the board’s order for suspending or revoking
the license, any license or registration, including a wall certificate, issued
by the board and subsequently suspended or revoked will be promptly returned to
the board office, but no later than 30 days of receipt of such order, by the
licensee or registrant of the board’s order suspending or revoking the license.
[16.20.11.14
NMAC - N, 1-12-08; A, 9-30-14]
HISTORY OF 16.20.11 NMAC:
[RESERVED]