SUBCHAPTER 32N ‑ FORMAL AND INFORMAL PROCEEDINGS
21 NCAC 32N .0101 INITIATION OF FORMAL HEARINGS
21 NCAC 32N .0102 CONTINUANCES
21 NCAC 32N .0103 DISQUALIFICATION FOR PERSONAL BIAS
21 NCAC 32N .0104 DISCOVERY
21 NCAC 32N .0105 INFORMAL PROCEEDINGS
History Note: Authority G.S. 90‑14.1; 90‑14.2; 90‑14.3; 90‑14.4; 90‑14.5; 90‑14.6; 90‑14.7; 150B‑11(1); 150B‑38(h); 150B‑39;
Eff. March 1, 1991;
Amended Eff. September 1, 1995;
Repealed Eff. February 1, 2012.
As used in this Section:
(1) "Disciplinary Proceedings" means hearings conducted pursuant to G.S. 90-14.2 through 90-14.7, and Article 3A of Chapter 150B.
(2) "Good cause" related to motions or requests to continue or for additional time for responding includes:
(a) death or incapacitating illness of a party, or attorney of a party;
(b) a court order requiring a continuance;
(c) lack of proper notice of the hearing;
(d) a substitution of the attorney of a party if the substitution is shown to be required;
(e) agreement for a continuance by all parties if either more time is demonstrated to be necessary to complete mandatory preparation for the case, such as authorized discovery, and the parties and the Board have agreed to a new hearing date or the parties have agreed to a settlement of the case that has been or is likely to be approved by the Board; and
(f) where, for any other reason, either party has shown that the interests of justice require a continuance or additional time.
(3) "Good cause" related to motions or requests to continue or for additional time for responding shall not include:
(a) intentional delay;
(b) unavailability of a witness if the witness testimony can be taken by deposition; and
(c) failure of the attorney or respondent to use effectively the statutory notice period provided in G.S. 90-14.2(a) to prepare for the hearing.
(4) "Licensee" means all persons to whom the Board has issued a license as defined in G.S. 90-1.1.
(5) "Respondent" means the person licensed or approved by the Board who is named in the Notice of Charges and Allegations.
History Note: Authority G.S. 90-5.1(a)(3); 90-14.2; 150B-38(h);150B-40(c)(4);
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0107 INVESTIGATIONS AND COMPLAINTS
(a) At the time of first oral or written communication from the Board or staff or agent of the Board to a licensee regarding a complaint or investigation, the Board shall provide the notices set forth in G.S. 90-14(i), except as provided in Paragraph (e) of this Rule.
(b) A licensee shall submit a written response to a complaint received by the Board within 45 days from the date of a written request by Board staff. The Board shall grant up to an additional 30 days for the response where the licensee demonstrates good cause for the extension of time. The response shall contain accurate and complete information. Where a licensee fails to respond in the time and manner provided herein, the Board may treat that as a failure to respond to a Board inquiry in a reasonable time and manner as required by G.S. 90-14(a)(14).
(c) The licensee's written response to a complaint submitted to the Board in accordance with Paragraph (b) of this Rule shall be provided to the complainant upon written request as permitted in G.S. 90-16(e1), except that the response shall not be provided where the Board determines that the complainant has misused the Board's complaint process or that the release of the response would be harmful to the physical or mental health of the complainant who was a patient of the responding licensee.
(d) A licensee shall submit to an interview within 30 days from the date of an oral or written request from Board staff. The Board may grant up to an additional 15 days for the interview where the licensee demonstrates good cause for the extension of time. The responses to the questions and requests for information, including documents, during the interview shall be complete and accurate. Where respondent fails to respond in the time and manner provided herein, the Board may treat that as a failure to respond to a Board inquiry in a reasonable time and manner as required by G.S. 90-14(a)(14).
(e) The licensee who is the subject of a Board inquiry may retain and consult with legal counsel of his or her choosing in responding to the inquiries as set out in G.S. 90-14(i).
History Note: Authority G.S. 90-5.1(a)(3); 90-14(a)(14); 90-14(i); 90-16(e1);
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0108 INVESTIGATIVE INTERVIEWS BY BOARD MEMBERS
(a) In addition to formal hearings pursuant to G.S. 90-14 and G.S. 90-14.2, the Board may ask a licensee to attend a non-public interview with members of the Board and staff to discuss a pending complaint or investigation. The invitation letter shall describe the matters of dispute or concern and shall enclose the notices required by G.S. 90-14(i), if not previously issued. No individual shall be placed under oath to give testimony. Statements made or information provided by a licensee during this interview may, however, be used against such licensee in any subsequent formal hearing.
(b) As a result of the interview, the Board may ask that the licensee take actions as referred to in G.S. 90-14(k), may offer the licensee the opportunity to enter into a consent order or other public agreement that will be a matter of public record, may institute a formal public hearing concerning the licensee, or may take other action as the Board deems appropriate in each case.
(c) Unless ordered by the Board pursuant to G.S. 90-8, attendance at such an interview is not required. A licensee may retain legal counsel and have such counsel present during such interview.
(d) If ordered to appear for an interview, requests for continuances from interviews shall be filed with the President as soon as practicable and shall be granted only upon good cause shown.
History Note: Authority G.S. 90-5.1(a)(3); 90-8; 90-14(a)(14);
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0109 PRE-CHARGE CONFERENCE
(a) Prior to issuing public Notice of Charges and Allegations against a licensee, the Board shall inform the licensee in writing of the right to request a pre-charge conference as set forth in G.S. 90-14(j). The written notice regarding the pre-charge conference shall be sent by certified mail, return receipt requested to the last mailing address registered with the Board.
(b) A request for a pre-charge conference must be:
(1) in writing via delivery of a letter or by facsimile or electronic mail;
(2) addressed to the coordinator identified in the written notice provided as set forth in Paragraph (a) of this Rule; and
(3) received by the Board no later than 30 days from the date appearing on the written notice provided as set forth in Paragraph (a) of this Rule.
(c) Upon receipt of a request for a pre-charge conference, the coordinator shall schedule the conference to occur within 45 days and serve notice of the date and time of the conference on the licensee or on counsel for licensee, if the Board is aware licensee is represented by counsel.
(d) The pre-charge conference shall be conducted as provided in G.S. 90-14(j). The pre-charge conference will be conducted by telephone conference unless the interests of justice require otherwise or both parties agree to conduct the conference in person. No continuances of the pre-charge conference shall be allowed except when granted by the Board for good cause shown.
(e) The licensee may provide to the Board written documents not previously submitted by delivering those documents in electronic form to the coordinator identified in the written notice up to five days prior to the pre-charge conference.
(f) The Board shall provide information to the licensee during the pre-charge conference regarding the possibility of settlement of the pending matter prior to the issuance of a public notice of charges and allegations.
History Note: Authority G.S. 90-5.1(a)(3); 90-14(j);
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0110 initiation of disciplinary HEARINGs
(a) The Board shall issue a notice of charges and allegations only upon completion of an investigation, a finding by the Board or a committee of the Board that there exists a factual and legal basis for an action pursuant to any subsection of G.S. 90-14(a), and a pre-charge conference, if one was requested by the licensee.
(b) Disciplinary proceedings shall be initiated and conducted pursuant to G.S. 90-14 through G.S. 90-14.7 and G.S. 150B-38 through G.S. 150B-42.
(c) A pre-hearing conference shall be held not less than seven days before the hearing date unless waived by the Board President or designated presiding officer upon written request by either party. The purpose of the conference will be to simplify the issues to be determined, obtain stipulations in regards to testimony or exhibits, obtain stipulations of agreement on undisputed facts or the application of particular laws, consider the proposed witnesses for each party, identify and exchange documentary evidence intended to be introduced at the hearing, and consider such other matters that may be necessary or advisable for the efficient and expeditious conduct of the hearing.
(d) The pre-hearing conference shall be conducted in the offices of the Board, unless another site is designated by mutual agreement of all parties. When a face-to-face conference is impractical, the Board President or designated presiding officer may order the pre-hearing conference be conducted by telephone conference.
(e) The pre-hearing conference shall be an informal proceeding and shall be conducted by the Board President or designated presiding officer.
(f) All agreements, stipulations, amendments, or other matters resulting from the pre-hearing conference shall be in writing, signed by the presiding officer, Respondent, or Respondent's counsel, and Board counsel, and introduced into the record at the beginning of the disciplinary hearing.
(g) Motions for a continuance of a hearing shall be granted upon a showing of good cause. In determining whether to grant such motions, the Board shall consider the Guidelines for Resolving Scheduling Conflicts adopted by the State-Federal Judicial Council of North Carolina. Motions for a continuance must be in writing and received in the office of the Board no less than 14 calendar days before the hearing date. A motion for a continuance filed less than 14 calendar days from the date of the hearing shall be denied unless the reason for the motion could not have been ascertained earlier. Motions for continuance shall be ruled on by the Board President or designated presiding officer.
(h) The Respondent may challenge on the basis of personal bias or other reason for disqualification the fitness and competency of any Board member to hear and weigh evidence concerning the Respondent. Challenges must be in writing accompanied by affidavit setting forth with specificity the grounds for such challenge and must be filed with the Board President or designated presiding officer at least 14 days before the hearing except for good cause shown. Nothing contained in this Rule shall prevent a Respondent appearing before the Board at a formal hearing from making inquiry of Board members as to their knowledge of and personal bias concerning that person's case and making a motion based upon the responses to those inquiries that a Board member recuse himself or herself or be removed by the Board President or presiding officer.
(i) In any formal proceeding pursuant to G.S. 90-14.1 and G.S. 90-14.2, discovery may be obtained as provided in G.S. 90-8 and 150B-39 by either the Board or the Respondent. Any discovery request by a Respondent to the Board shall be filed with the Chief Executive Officer of the Board. Nothing herein is intended to prohibit a Respondent or Respondent's counsel from issuing subpoenas to the extent that such subpoenas are otherwise permitted by law or rule. The Board may issue subpoenas for the Board or a Respondent in preparation for or in the conduct of a contested case as follows:
(1) Subpoenas may be issued for the appearance of witnesses or the production of documents or information, either at the hearing or for the purposes of discovery;
(2) Requests by a Respondent for subpoenas shall be made in writing to the Chief Executive Officer and shall include the following:
(A) the full name and home or business address of all persons to be subpoenaed; and
(B) the identification, with specificity, of any documents or information being sought;
(3) Where Respondent makes a request for subpoenas and complies with the requirements in Subparagraph (2) of this Paragraph, the Board shall provide subpoenas promptly;
(4) Subpoenas shall include the date, time, and place of the hearing and the name and address of the party requesting the subpoena. In the case of subpoenas for the purpose of discovery, the subpoena shall include the date, time, and place for responding to the subpoena; and
(5) Subpoenas shall be served as provided by the Rules of Civil Procedure, G.S. 1A-1. The cost of service, fees, and expenses of any witnesses or documents subpoenaed shall be paid by the party requesting the witnesses.
(j) All motions, other than motions pursuant to Rules 12(b) and 56 of the North Carolina Rules of Civil Procedure related to a contested case shall be in writing and submitted to the Board at least 14 calendar days before the hearing. Pre-hearing motions shall be heard at the pre-hearing conference described in Paragraph (c) of this Rule. Motions filed fewer than 14 days before the hearing shall be considered untimely and shall not be considered unless the reason for the motion could not have been ascertained earlier. In such case, the motion shall be considered at the hearing prior to the commencement of testimony. The Board President or designated presiding officer shall hear the motions and any response from the non-moving party and rule on such motions. If the pre-hearing motions are heard by an Administrative Law Judge from the Office of Administrative Hearings the provisions of G.S. 150B-40(e) shall govern the proceedings.
(k) Dispositive motions made pursuant to Rules 12(b) and 56 of the North Carolina Rules of Civil Procedure shall be filed no later than 14 calendar days before the hearing. Dispositive motions shall be heard, and decided upon, by a quorum of the Board. The Board shall receive the assistance of independent counsel when deciding a dispositive motion.
History Note: Authority G.S. 90-5.1(a)(3); 90-8; 90-14.1; 90-14.2; 90-14.3; 150B-38; 150B-39(c);
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016;
Amended Eff. July 1, 2019.
21 NCAC 32N .0111 CONDUCTING disciplinary HEARINGs
(a) Disciplinary hearings conducted before a majority of Board members shall be held at the Board's office or, by mutual consent, in another location where a majority of the Board has convened for the purpose of conducting business. For proceedings conducted by an administrative law judge, the venue shall be determined in accordance with G.S. 150B-38(e). All hearings conducted by the Medical Board are open to the public; however, portions are closed to protect the identity of patients pursuant to G.S. 90-16(b).
(b) All hearings by the Medical Board shall be conducted by a quorum of the Medical Board, except as provided in Subparagraph (1) and (2) of this Paragraph. The Medical Board President or his or her designee shall preside at the hearing. The Medical Board shall retain independent legal counsel to provide advice to the Board as set forth in G.S. 90-14.2. The quorum of the Medical Board shall hear all evidence, make findings of fact and conclusions of law, and issue an order reflecting the decision of the majority of the quorum of the Board. The final form of the order shall be determined by the presiding officer, who shall sign the order. When a majority of the members of the Medical Board is unable or elects not to hear a contested case:
(1) The Medical Board may request the designation of an administrative law judge from the Office of Administrative Hearings to preside at the hearing so long as the Board has not alleged the licensee failed to meet an applicable standard of medical care. The provisions of G.S. 150B, Article 3A shall govern a contested case in which an administrative law judge is designated as the Hearing Officer; or
(2) The Medical Board President may designate in writing three or more hearing officers to conduct hearings as a hearing committee to take evidence. The provisions of G.S. 90-14.5(a) through (d) shall govern a contested case in which a hearing committee is designated.
(c) If any party or attorney of a party or any other person in or near the hearing room engages in conduct which obstructs the proceedings or would constitute contempt if done in the General Court of Justice, the Board may apply to the applicable superior court for an order to show cause why the person(s) should not be held in contempt of the Board and its processes.
(d) During a hearing, if it appears in the interest of justice that further testimony should be received and sufficient time does not remain to conclude the testimony, the Medical Board may continue the hearing to a future date to allow for the additional testimony to be taken by deposition or to be presented orally. In such situations and to such extent as possible, the seated members of the Medical Board shall receive the additional testimony. If new members of the Board or a different independent counsel must participate, a copy of the transcript of the hearing shall be provided to them prior to the receipt of the additional testimony.
(e) All parties have the right to present evidence, rebuttal testimony, and argument with respect to the issues of law, and to cross-examine witnesses. The North Carolina Rules of Evidence in G.S. 8C apply to contested case proceedings, except as provided otherwise in this Rule, G.S. 90-14.6 and G.S. 150B-41.
History Note: Authority G.S. 90-5.1(a)(3); 90-14.2; 90-14.5; 90-14.6; 90-14.7; 90-16(b); 150B-38(e)(h); 150B-40; 150B-41; 150B-42;
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0112 POST HEARING MOTIONS
(a) Following a disciplinary hearing either party may request a new hearing or to reopen the hearing for good cause as provided in G.S. 90-14.7. For the purposes of this Rule, good cause is defined as any of the grounds set out in Rule 59 of the North Carolina Rules of Civil Procedure and complying with the following requirements:
(1) Following hearings conducted by a quorum of the Board, a motion for a new hearing or to reopen the hearing to take new evidence shall be served, in writing, on the presiding officer of the disciplinary hearing no later than 20 days after service of the final order upon the respondent. Supporting affidavits, if any, and a memorandum setting forth the basis of the motion together with supporting authorities, shall be filed with the motion. The opposing party has 20 days from service of the motion to file a written response, any reply affidavits, and a memorandum with supporting authorities. A quorum of the Board shall rule on the motion based on the parties' written submissions and oral arguments, if the Board permitted any; and
(2) Following hearings conducted by a hearing panel pursuant to G.S. 90-14.5, a motion for a new hearing or to reopen the hearing to take new evidence shall be served, in writing, on the presiding officer of the hearing panel no later than 20 days after service of the recommended decision upon the respondent or respondent's counsel. Supporting affidavits, if any, and a memorandum setting forth the basis of the motion together with supporting authorities, shall be filed with the motion. The opposing party has 20 days from service of the motion to file a written response, any reply affidavits, and a memorandum with supporting authorities. The hearing panel shall rule on the motion based on the parties' written submission and oral arguments, if the Board permitted any.
(b) Either party may file a motion for relief from the final order of the Board based on any of the grounds set out in Rule 60 of the North Carolina Rules of Civil Procedure. Relief from the final order of the Board shall not be permitted later than one year after the effective date of the final order from which relief is sought. Motions pursuant to this section will be heard and decided in the same manner as motions submitted pursuant to Subparagraph (a)(1) of this Rule.
(c) The filing of a motion under Subparagraph (a)(1) or Paragraph (b) of this Rule does not automatically stay or otherwise affect the effective date of the final order.
History Note: Authority G.S. 90-5.1(a)(3); 90-14.7;
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0113 correction of clerical mistakes
Clerical mistakes in orders or other parts of the record from a formal hearing and errors therein arising from oversight or omission may be corrected by the Board President or designated presiding officer at any time on his or her own initiative or on the motion of any party and after such notice, if any, as the Board President or designated presiding officer orders. After the filing by a respondent of an appeal to the Superior Court of the Board's imposition of public disciplinary action as set forth in G.S. 90-14.8, such mistakes may be so corrected before the record of the case is filed by the Board with the clerk of the Superior Court as required by G.S. 90-14.8.
History Note: Authority G.S. 90-5.1(a)(3); 150B-40;
Eff. February 1, 2012;
Pursuant to G.S. 150B-21.3A rule is necessary without substantive public interest Eff. March 1, 2016.
21 NCAC 32N .0114 summary suspension
(a) If the Board finds that the public health, safety, or welfare requires emergency action, it may, pursuant to G.S. 150B-3(c), summarily suspend a license without a hearing or opportunity for the licensee to be heard.
(b) A motion to summarily suspend a license pursuant to this Rule shall be supported by competent evidence of the facts alleged requiring emergency action.
(c) The Board shall consult with independent counsel prior to issuing an order of summary suspension. The role of independent counsel shall be to advise the Board on the reliability and competency of the evidence presented in support of the motion for summary suspension.
(d) An order of summary suspension shall make preliminary findings of facts indicating why the public health, safety, or welfare requires emergency action. An order of summary suspension shall be accompanied by a notice of charges setting out the licensee's alleged violations of G.S. 90-14(a). Upon service of the order of summary suspension, the licensee to whom the order is directed shall immediately cease practicing in North Carolina.
(e) The Board shall, when it summarily suspends a license, schedule a hearing to occur at the earliest practicable date, but no later than 30 days from the date of service of the order of summary suspension. The purpose of the hearing will be to determine whether there is a preponderance of competent evidence supporting the order of summary suspension. A hearing on the order of summary suspension may be combined with a hearing on the merits of the notice of charges on a date mutually agreed upon by the parties.
(f) The order of summary suspension shall remain in effect until the Board vacates it.
(g) Neither an order of summary suspension nor a decision upholding an order of summary suspension is a final agency decision.
History Note: Authority G.S. 90-5.1(a)(3); 150B-3(c);
Eff. July 1, 2019.