CHAPTER 11

 

PRACTICE AND PROCEDURES FOR DISCIPLINE MATTERS

 

 Section 1. Authority. The Board promulgates these rules according to authority granted by Wyoming Statutes 33-43-115, 33-43-116 and 16-3-103(j)(i).

 

 Section 2. The Board may take disciplinary action for the following:

 

 (a) Licensee violating the Board's practice act or rules;

 

 (b) Licensee violating a Board order;

 

 (c) Licensee violating of any provision of the adopted Ethical Standards as incorporated by reference in Chapter 1;

 

 (d) Performing any act specifically authorized for a respiratory care practitioner or functioning as a respiratory care practitioner in Wyoming without a current license issued by the Board;

 

 (e) Representation of oneself as licensed to engage in the practice of respiratory care without a license or permit;

 

 (f) Aiding, abetting or assisting any other person to violate or circumvent any law or rule or regulation intended to guide the conduct of a respiratory care practitioner;

 

 (g) Obtaining or attempting to obtain a license or documents of any form as a respiratory care practitioner by fraud or deception.

 

 (h) Failure to cooperate in any material respect with a lawful investigation conducted by the Board.

 

 (i) Violation of any provision(s) of an action, stipulation, agreement or order of the Board.

 

 (j) Filing a complaint with, or providing information to the board which the licensee knows or ought to know is false or misleading. This provision does not apply to any filing of complaint or providing information to the board when done in good faith.

 

 (k) Suspension, revocation, or other disciplinary action imposed against a license held in another jurisdiction.

 

 (l) Conviction of a felony or misdemeanor that relates to the practice of respiratory care or to the ability to practice respiratory care, or has entered a plea of nolo contendere upon being charged with commission of such a felony or misdemeanor.

 

 (m) Negligence while in practice as a respiratory care practitioner.

 

 (n) Unauthorized possession and use of illegal or controlled substances or pharmacologic agents without lawful authority or prescription by an authorized and licensed independent practitioner of the state of Wyoming.

 

 (o) Violation and conviction of a charge under the Wyoming Controlled Substance Act.

 

 (p) Verbally, physically or mentally abusing patients.

 

 (q) Sexual exploitation of a patient or patient's family member defined as:

 

  (i) Any behavior by a Licensee or Certificate which involves offers of exchange of professional services for some form of sexual gratification; or

 

  (ii) Unlawful or unprofessional sexual contact with a patient.

 

 (r) Maintaining an unsanitary or unsafe office or practicing under unsanitary or unsafe conditions.

 

 (s) Failing to obtain an appropriate consultation or make an appropriate referral when the problem of the patient is beyond the licensee's training, experience or competence.

 

 (t) Failing to render adequate supervision, management, training or control of auxiliary staff or other persons according to generally-accepted standards of practice.

 

 (u) Inaccurate recording, falsifying or altering of patient records.

 

 (v) Engaging in fraudulent billing practices and/or violation of federal Medicare and Medicaid laws or state medical assistance laws.

 

 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;

 

  (iii) Approve a settlement agreement; or

 

  (iv) Discipline the licensee, including:

 

   (A) Revocation;

 

   (B) Suspension;

 

   (C) Refusal to renew;

 

   (D) Probation; or

 

   (E) Reprimand.

 

 Section 4. Summary Suspension.

 

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

 

 (b) The IC shall notify the licensee 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 member may be assembled.

 

 (c) When the date and time of the summary suspension hearing is set, the Board staff shall notify the licensee of the date and time of the proceeding by mailing written notice and emailing electronic notice to the licensee'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 licensee 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 licensee.

 

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

 

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

 

  (iv) The licensee, if present, may present any information demonstrating that the allegations are not true or that, even if the allegations are true, the licensee'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 licensee'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 days after the proceeding. The Board shall send the order to the licensee by U.S. mail and by email.

 

 (j) Post-Deprivation Hearing.

 

  (i) A licensee may request a post-deprivation hearing within ten days from the date the summary suspension order is entered.

 

  (ii) If a licensee requests a post-deprivation hearing, the Board shall conduct it within 30 days of the licensee's request and notify the licensee 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, and issue a written order to that effect, if it concludes that the IC has proven the allegation 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 License Issued in Error.

 

 (a) A license may petition the Board in writing, to voluntarily surrender a license 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 has been issued despite an applicant not meeting licensure requirements and:

 

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

 

  (ii) If Board Staff has issued the license 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 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 discipline. Nothing in this subsection prohibits discipline or application denial for a licensee's conduct.

 

   (C) A licensee may surrender the license 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 of the licensee most recently supplied to the Board.

 

 (b) The IC shall notify the licensee 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 licensee no less than thirty (30) days to show that the licensee has complied with all lawful license requirements.

 

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

 

 (d) A licensee 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 licensee shall respond to a Petition within twenty (20) days from the date the Petition is filed with the Board office or if the licensee 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 my 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 office 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 licensee 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 licensee 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 licensee. 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 licensee 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.

 

 (i) Any hearing office 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.

 

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

(k) 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 licensee'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 licensee;

 

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

 

    (I) Revocation;

 

    (II) Suspension;

 

    (III) Refusal to renew;

 

    (IV) Probation; or

 

    (V) Reprimand.

 

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

 

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

 

 (n) Written board decisions or orders are final agency action 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 licensee may petition the Board to modify any conditions or restrictions on his or her license. The licensee 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 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.