CHAPTER 13

PRACTICE AND PROCEDURES FOR DISCIPLINE MATTERS

 

Section 1. Authority. These rules and regulations are promulgated by the Wyoming Board of Funeral Service Practitioners pursuant to its authority under the Funeral Service Practitioners Act, Wyoming Statute 33-16-501 through 33-16-537.

 

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

 

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

 

(b) Failure to timely and properly apply for license renewal;

 

(c) Failure to meet any applicable continuing education requirements that are required before a license expires;

 

(d) Unprofessional, or dishonorable conduct, which is:

 

(i) Harassment, intimidation, or abuse, sexual or otherwise, of a customer, co-worker, or employee;

 

(ii) Practicing outside the areas of professional competence as established by the licensee's education, training, and experience;

 

(iii) Gross negligence in funeral service practice;

 

(iv) Exercising undue influence to exploit a customer, co-worker, or employee for financial or other advantage to the funeral service practitioner or a third party;

 

(v) The suspension or revocation by another jurisdiction of a license to practice funeral service. A certified copy of the order of suspension or revocation shall be conclusive evidence of suspension or revocation;

 

(vi) Refusal to appear before the Board after having been ordered to do so in writing by the Executive Director or Board President;

 

(vii) Knowing false statements on an application or other formal document or record submitted to the Board;

 

(viii) Failure to meet the requirements for Wyoming licensure; or

 

(ix) Conviction of any crime or offense that reflects the inability of the funeral service practitioner to practice funeral service with due regard for the health and safety of the public.

 

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) Impose license restrictions; and

 

(D) Impose a civil penalty and fees. Fees shall not exceed the Board's actual costs and expenses for investigating, prosecuting, and reasonable attorney fees in disposing of the disciplinary matter. The total amount imposed on a licensee for a civil penalty and fees shall not exceed two thousand dollars ($2,000) for each violation of the Board's practice act or rules.

 

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 members 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 probable 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 thirty (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 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 Issued in Error.

 

(a) A licensee 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, or the Board has directly issued the license, 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 this subsection shall not be considered license discipline. Nothing in this paragraph prohibits discipline or application denial for a licensee's conduct.

 

(C) A licensee may surrender the license at issue, without Board approval, in lieu of a hearing before the Board.

 

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 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 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 (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 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 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 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 of the Board's rules.

 

(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, including license or practice restrictions; or

 

(V) Impose a civil penalty and fees. Fees shall not exceed the Board's actual costs and expenses for investigating, prosecuting, and reasonable attorney fees in disposing of the disciplinary matter. The total amount imposed on a licensee for a civil penalty and fees shall not exceed two thousand dollars ($2,000) for each violation of the Board's practice act or rules.

 

(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.