§ 37:1285.2 — Investigations and adjudications; staff; complaints; board procedure; rulemaking

Louisiana § 37:1285.2

• Jurisdiction: Louisiana
• Title 37: Professions and Occupations

Text

§1285.2. Investigations and adjudications; staff; complaints; board procedure; rulemaking
authority
A.(1) The board shall initiate a preliminary review to determine if cause exists to
warrant formal investigation only upon one or more of the following:
(a) A complaint received from a person other than an employee of the board.
(b) Any report from a law enforcement agency, federal or state regulatory agency,
reporting authority verified by the board chairman through electronic means or other means,
or physician health program or other treatment program that contains information that
supports an indication that a possible violation of this Part, or any rule promulgated pursuant
to this Part, may have occurred.
(c) The duly adopted motion in an executive session of the board by a two-thirds vote
of the members of the board making an affirmative finding that sufficient evidence exists to
conclude that a violation of this Part, or any rule promulgated pursuant to this Part, may have
occurred.
(2) The duration of any preliminary review initiated in accordance with this
Subsection shall be no greater than ninety days unless extended by the board.
(3) In a preliminary review initiated in accordance with this Subsection, the board
may obtain all files and records related to the complaint and to the complainant, and may
obtain no more than twenty additional files or records in connection with the review unless
the board authorizes review of additional files or records.
B. The board shall adopt rules, in accordance with the Administrative Procedure Act,
to provide for the investigation of complaints against physicians and adjudication of alleged
violations by physicians of any provision of this Chapter. The rules shall satisfy the
minimum due process requirements of the Constitution of Louisiana and the Constitution of
the United States of America and shall address, at a minimum, all of the following:
(1) Notice of the investigation including a brief summary of the facts constituting the
alleged violation to be provided to the physician no later than five business days after the
board's formal investigation is initiated by a majority vote of the board members present and
voting.
(2) Time limits for initiating and completing a complaint investigation and for
scheduling an adjudicatory hearing.
(3) Informal settlements and consent decrees.
(4) Notice of any adjudicatory hearing to be provided to the physician.
(5) Pleadings and other motions.
(6) Discovery.
(7) Subpoenas and subpoenas duces tecum.
(8) Representation of the physician by counsel of choice.
(9) Prehearing conferences.
(10) Procedure for conducting the adjudicatory hearing including examination of
witnesses and the placement of evidence into the record.
(11) Notice of the final decision of the board to be provided to the physician.
C. Any final decision of the board shall be supported by a preponderance of the
evidence presented at the adjudicatory hearing.
D.(1) Prior to the board's conducting any site visit or requesting medical records
from an individual licensed by the board who is not subject to an active investigation the
executive director shall request approval of the board through a duly adopted motion by
two-thirds vote of the board, meeting in executive session, to conduct the site visit or make
the records request. The executive director shall include in the request for approval the basis
upon which the site visit or records request is warranted, the number of records to be
requested, if applicable, the date, time, and anticipated length of the proposed site visit, and
the dates of any previous site visits. The board shall be prohibited from disclosing the
identity of any individual included in the request for approval.
(2) The provisions of Paragraph (1) of this Subsection shall apply to practice
performance reviews of physicians utilizing telehealth.
E.(1) Except as provided in Paragraph (2) of this Subsection, in connection with the
notice of filing of a formal administrative complaint, the board shall notify the physician that
he has the right to face any complainant at the administrative hearing unless the independent
counsel rules that the complainant may remain anonymous. Prior to issuing any such ruling,
the independent counsel shall review all evidence related to the complaint submitted by the
complainant and the physician.
(2) The board, through a duly adopted motion by two-thirds vote of the board, may
overrule the ruling of the independent counsel relative to complainant anonymity provided
for in Paragraph (1) of this Subsection.
F.(1)(a) Subject to the conditions of Subparagraph (b) of this Paragraph, prior to
offering a consent order to a person licensed by the board, the board shall make available to
the person all files and records which pertain to the case against him before the board, and
which are not required by law to remain confidential or which are not otherwise privileged.
(b) The board may object to making particular files and records available as provided
in Subparagraph (a) of this Paragraph. If the board makes such an objection, then the
independent counsel shall review the grounds for the objection to the disclosure and may
overrule the objection. If the independent counsel overrules the objection, then the board
shall disclose the files and records as provided in Subparagraph (a) of this Paragraph. If the
independent counsel does not overrule the objection, then the board shall not be required to
disclose the files and records as provided in Subparagraph (a) of this Paragraph.
(2)(a) Upon filing of a formal administrative complaint against a physician, all files
of the board regarding the complaint which are not required by law to remain confidential
or which are not otherwise privileged shall be made available to the physician through full
discovery and shall be disclosed to the physician upon request. The physician may issue
interrogatories or discovery requests to the investigator in the case before the board, and the
investigator shall be compelled to respond as provided for in the Code of Civil Procedure.
Any potential exculpatory evidence shall be disclosed to the physician whether or not
requested and whether or not reduced to recorded or documentary form.
(b) All relevant information, documents, and records gathered in an investigation of
a physician shall be noted in the record or file of the case, except that the board may object
to including particular material in the record or file of the case. If the board objects to
including any material in the record or file of the case, then the independent counsel shall
review the grounds for the objection and may overrule the objection. If the independent
counsel overrules the objection, then the board shall include the material subject to the
overruled objection in the record or file of the case. If the independent counsel does not
overrule the objection, then the board shall not be required to include the material subject to
the objection in the record or file of the case.
(3) If the board intends to use records from any prior investigation of a physician in
the case against the physician before the board, then the board shall notify the physician and
his counsel of this intention, and the records shall be deemed to be records of the case before
the board and subject to all applicable provisions of this Subsection.
G. On or before March first annually, the board shall submit a report to the House
and Senate committees on health and welfare which encompasses, at minimum, all of the
following information from the prior calendar year for each type of healthcare professional
licensed by the board, delineated by profession type:
(1) The number of preliminary reviews conducted in accordance with Subsection A
of this Section.
(2) The number of complaints that the board received.
(3) The number of formal investigations that the board initiated.
(4) The number of consent decrees that licensees of the board entered into and other
disciplinary actions that the board took.

Legislative History

Acts 2015, No. 441, §1, eff. July 1, 2015; Acts 2018, No. 599, §1; Acts 2023, No. 322, §3, eff. Jan. 1, 2024.