CHAPTER 12

PRACTICE AND PROCEDURES FOR DISCIPLINE MATTERS

 Section 1. Authority. The Board promulgates these rules according to authority granted by Wyoming Statute 33-25-104(a)(iv) and 16-3-103(j)(i).

 

 Section 2. In addition to the grounds identified in Wyoming Statute 33-25-11, the Board may take disciplinary action for the following:

 

 (a) Engaging in or soliciting any intimate, sexual, or otherwise exploitive behavior relationships, whether consensual or non-consensual, with a patient throughout the existence of a patient while a physical therapist/patient or physical therapist assistant/patient relationship exists;

 

 (b) Making sexual advances, either verbally or physically;

 

 (c) Requesting sexual favors;

 

 (d) Failing to obtain, document and maintain informed consent for any procedure which may be deemed "sexual" by a reasonable person;

 

 (e) Engaging in any verbal or physical conduct which:

 

  (i) Deviates from generally accepted and prevailing practices for any given patient care situation;

 

  (ii) Violates professional boundaries;

 

  (iii) Exploits the trust of a patient by performing a procedure or technique on the patient for which there is no clinically valid reason;

 

 (f) While providing clinically valid and generally acceptable treatment the license or certificate holder exploits a patient's/client's trust through conduct or physical contact of a sexual nature with the patient or client.

 

 (g) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.

 

 Section 3. Complaint Review and Disciplinary Investigation.

 

 (a) Complaints that a licensee has violated the Board's practice act or the Board's rules shall be submitted to the Board's office. Board staff may initiate complaints.

 

 (b) After receiving a complaint or initiating a complaint, Board staff shall assign the complaint to an Investigation Committee (IC) for investigation.

 

 (c) After reviewing and investigating the complaint, the IC may recommend that the Board:

 

  (i) Dismiss the complaint;

 

  (ii) Summarily suspend a license or certificate;

 

  (iii) Approve a settlement agreement; or

 

  (iv) Discipline the license or certificate holder, including revocation, suspension, restriction, condition, or reprimand.

 

 Section 4. Summary Suspension.

 

 (a) An IC may recommend that the Board summarily suspend a license or certificate at any time when the IC or Board staff believes that the license or certificate holder's continued practice imperatively requires emergency action to protect the public health, safety, or welfare.

 

 (b) The IC shall notify the license or certificate holder of its intent to recommend summary suspension. The Notice of Intent shall contain:

 

  (i) A copy of the complaint, if any;

 

  (ii) A description of the grounds for the summary suspension recommendation; and

 

  (iii) Notice that an expedited summary suspension proceeding shall be set at the earliest opportunity a quorum of Board members may be assembled.

 

 (c) When the date and time of the summary suspension hearing is set, the Board staff shall notify the license or certificate holder of the date and time of the proceeding by mailing written notice and emailing electronic notice to the license or certificate holder's mailing and email addresses.

 

 (d) The scope of the expedited summary suspension proceeding shall be limited to a presentation of the information the IC believes warrants summary suspension and any information the license or certificate holder may present on his or her behalf.

 

 (e) Hearing Format.

 

  (i) The IC shall describe the allegations that it believes warrant emergency action against the license or certificate holder.

 

  (ii) The IC shall present information that demonstrates probable cause that the allegations are true.

 

  (iii) The IC shall explain why the license or certificate holder's continued practice imperatively requires emergency action to protect the public health, safety, or welfare.

 

  (iv) The license or certificate holder, if present, may present any information demonstrating that the allegations are not true or that, even if the allegations are true, the license or certificate holder's continued practice does not imperatively require emergency action to protect the public health, safety, or welfare.

 

 (f) The Board may order summary suspension if it concludes that probable cause exists that the allegations are true and that the license or certificate holder's continued practice imperatively requires emergency action to protect the public health, safety, or welfare. The Board shall incorporate a finding to that effect in its order granting summary suspension.

 

 (g) No summary suspension shall be effective until the Board has adopted a written order incorporating the reasons justifying its decision.

 

 (h) The Board shall enter a written order granting or denying summary suspension at the summary suspension proceeding or within seven (7) days after the proceeding. The Board shall send the order to the license or certificate holder by U.S. mail and by email.

 

 (j) Post-Deprivation Hearing.

 

  (i) A license or certificate holder may request a post-deprivation hearing within ten (10) days from the date the summary suspension order is entered.

 

  (ii) If a license or certificate holder requests a post-deprivation hearing, the Board shall conduct it within thirty (30) days  of the license or certificate holder's request and notify the license or certificate holder of the date, time, and location of the hearing.

 

  (iii) Post-deprivation hearings shall be conducted in the same manner as summary suspension proceedings as articulated in Section 4(e) of this chapter. The sole issue before the Board at a post-deprivation hearing shall be whether the IC's allegations imperatively require emergency action to protect the public health, safety, and welfare. The Board shall affirm its decision to summarily suspend a license or certificate, and issue a written order to that effect, if it concludes that the IC has proven the allegations by a preponderance of the evidence and that the allegations imperatively require emergency action to protect the public health, safety, or welfare.

 

 (k) Unless earlier terminated by the Board or a petition for discipline is filed under Section 6 of this chapter, summary suspensions shall lapse 180 days after the written order granting summary suspension is entered under subsection (h) of this section.

 

 Section 5. Surrender in Lieu of Discipline and Licenses or Certificates Issued in Error.

 

 (a) A license or certificate holder may petition the Board, in writing, to voluntarily surrender a license or certificate in lieu of discipline.

 

  (i) The IC shall recommend that the Board approve or deny the petition.

 

  (ii) The Board may approve or deny the petition.

 

 (b) If Board staff has reason to believe that a license or certificate has been issued despite an applicant not meeting licensure or certification requirements and:

 

  (i) If Board staff has issued the license or certificate and the Board has not ratified its issuance, the license or certificate shall be rescinded and the matter shall be referred to an ARC.

 

  (ii) If Board staff has issued the license or certificate and the Board has ratified its issuance, the matter shall be referred to an IC.

 

   (A) The IC may petition the Board to revoke the license or certificate, or impose practice restrictions according to the procedures outlined in Section 6 of this chapter and may seek summary suspension.

 

   (B) A revocation solely for the reasons specified in this subsection shall not be considered license or certificate discipline. Nothing in this subsection prohibits discipline or application denial for a license or certificate holder's conduct.

 

   (C) A license or certificate holder may surrender the license or certificate at issue under this provision in lieu of a hearing before the Board without Board approval.

 

 Section 6. Hearing Procedure.

 

 (a) There shall be a presumption of lawful service of a Notice of Intent, Petition, Notice of Hearing, or any other communication required by these rules if sent by U.S. mail to the address the license or certificate holder most recently supplied to the Board.

 

 (b) The IC shall notify the license or certificate holder of its intent to file a petition for disciplinary action. The Notice of Intent shall:

 

  (i) Include a brief description of the facts or conduct that warrant the intended action;

 

  (ii) Include a description of the nature of the discipline the IC intends to seek; and

 

  (iii) Provide the license or certificate holder no less than thirty (30) days to show that the license or certificate holder has complied with all lawful license or certificate requirements.

 (c) The IC shall initiate proceedings for disciplinary action by filing a Petition with the Board office and serving a copy upon the license or certificate holder to the last known address of the license or certificate holder by regular U.S. mail.

 

 (d) A license or certificate holder may respond to the Petition by filing an Answer admitting or denying the allegations in the Petition or by filing a dispositive motion.

 

 (e) A license or certificate holder shall respond to a Petition within twenty (20) days from the date the Petition is filed with the Board office or, if the license or certificate holder files a dispositive motion, from the date the dispositive motion is decided by entry of a written order. Failure to respond to the Petition within this time may result in a default judgment.

 

 (f) When a petition for disciplinary action is filed, the Board or a hearing officer appointed by the Board shall begin a contested case proceeding. Board staff or the hearing officer shall serve a Notice of Hearing, with the Petition attached, on the applicant at least thirty (30) days before the hearing. The Notice of Hearing shall contain:

 

  (i) The legal authority for the Petition and statement of the Board's jurisdiction;

 

  (ii) The facts justifying the disciplinary action sought;

 

  (iii) The statutory provisions or Board rules the license or certificate holder is alleged to have violated;

 

  (iv) The time, place, and nature of the hearing; and

 

  (v) Notice of the burden and standard of proof.

 

 (g) If a license or certificate holder fails to timely answer the allegations in a Petition or appear at a noticed hearing, and upon the IC's motion, the Board may enter default against the license or certificate holder. In entering default, the Board may:

 

  (i) Order that the factual allegations in the Petition are to be taken as true for the purposes of the hearing;

 

  (ii) Order that the license or certificate holder may not present evidence on some or all issues in the matter; or

 

  (iii) Any other relief the Board determines is just.

 

 (h) The Board may set aside an entry of default for good cause.

 

 (j) Any hearing officer appointed by the Board shall preside over the contested case proceeding and shall conduct the proceeding according to the Wyoming Administrative Procedure Act and Chapter 2 of the Office of Administrative Hearings rules as incorporated by reference in Chapter 1.

 

 (k) The IC shall bear the burden to prove by clear and convincing evidence that the license or certificate holder violated the Board's practice act or the Board's rules.

 

 (l) The Board may resolve a discipline matter by:

 

  (i) Resolving a dispositive motion in either party's favor;

 

  (ii) Accepting a settlement agreed on by both parties;

 

  (iii) Granting a license or certificate holder's petition for voluntary surrender in lieu of discipline under Section 5(a) of this chapter;

 

  (iv) Conducting a contested case hearing. Following the hearing and the Board's deliberation, the Board may, as applicable:

 

   (A) Find no violation of the Board's practice act or rules and therefore impose no discipline on the license or certificate holder;

 

   (B) Find that the license or certificate holder has violated the Board's practice act or rules and impose the following discipline:

 

    (I) Revoke the license or certificate;

 

    (II) Suspend the license or certificate;

 

    (III) Restrict the license or certificate;

 

    (IV) Condition the license or certificate;

 

    (V) Reprimand the licensee or certificate; or

 

    (VI) Refuse to renew the license or certificate.

 

 (m) The Board shall issue a written decision or order. The decision or order shall be sent by U.S. Mail to the license or certificate holder and the license or certificate holder's attorney or representative, if any.

 

 (n) Board action is effective on the date that the Board approves the written decision or order and it is entered into the administrative record.

 

 (o) Written Board decisions or orders are final agency action and subject to judicial review according to the Wyoming Administrative Procedure Act and the Wyoming Rules of Appellate Procedure.

 

 Section 7. Petition for Modifying Conditions or Restrictions.

 

 (a) A license or certificate holder may petition the Board to modify any conditions or restrictions on his or her license or certificate. The license or certificate holder shall submit a written petition for modification to the Board office. The petition for modification shall include evidence demonstrating:

 

  (i) Compliance with all previously entered Board orders;

 

  (ii) That the modification is consistent with any treatment plan or medical orders, if applicable; and

 

  (iii) That the modification will ensure the public is adequately protected.

 

 (b) The IC assigned the matter shall review the petition and shall recommend that the Board either grant or deny the petition within thirty (30) days of the Board office receiving the petition.

 

 (c) Board Consideration.

 

  (i) The Board shall consider the petition and the IC's recommendation at its earliest convenience.

 

  (ii) The Board may approve or deny the petition for modification.