Wyo. Code R. 054-0002-8
General
Chapter 8: Practice and Procedure
Effective Date: 06/22/2009 to 06/21/2013
Rule Type: Superceded Rules & Regulations
Reference Number: 054.0002.8.06222009
(a) These rules and regulations are adopted to implement the board's authority to conduct investigations, hearings and proceedings concerning alleged violations of the Nurse Practice Act or the board's rules and regulations, and to determine and administer appropriate disciplinary action against any person(s) issued a license, certificate or permit by the board.
(b) For purposes of this chapter, any individual holding a current license, permit or certificate issued by the board, and providing the individual the opportunity to practice a profession in accordance with the Wyoming Nurse Practice Act and the board's rules and regulations, shall be referred to as a 'licensee'. Any person not currently licensed by the board, but applying for any type of license, permit or certificate issued by the board shall be referred to as 'applicant'.
(a) The board shall comply with court orders issued pursuant to W.S. 20-6-112(a), pertaining to an applicant, and/or licensee who is arrears in child support payments.
(a) Any complaint filed against a licensee shall be made in writing and contain the signature and address of the person or persons making the complaint.
(b) To initiate the investigatory process, the complainant should provide the following with the complaint:
(i) The name, address, place of employment and position of the individual alleged to have violated the Wyoming Nurse Practice Act or board rules and regulations;
(ii) The nature of the complaint and a description of the incidents involved, including dates, times, and locations, and any observed behavior of the individual;
(iii) Supportive documentation of the allegations which may include, but is not limited to:
(A) Statements of witnesses, preferably signed, which may provide information regarding the alleged violations. Such statements should include names and contact information of witnesses;
(B) Medical releases, medical records, or both;
(C) Law enforcement records, including court documents;
(D) Investigatory data and reports relevant to the allegations, which were conducted or compiled by the complainant or other parties;
(E) Work schedules, employment policies and procedures, workplace assignments, staffing at the time of the alleged incident, documentation of prior employment discipline which may be helpful in substantiating the violation; and (F) Any other data potentially relevant to the complainant's allegation(s).
Section 4. Disciplinary Committee and Review of the Original Complaint.
(a) Disciplinary committee. Complaints submitted to the board office in conformity with Section 3 of this chapter shall be investigated by the board's designate. All investigatory data and information shall be submitted to a disciplinary committee, consisting of at least one (1) or more designated board members assigned to review the matter. Any board staff member reviewing or compiling information relating to the complaint, may also be deemed a committee member.
(b) In cases where the physical or mental condition of a licensee is at issue the disciplinary committee, on behalf of the board, may issue an order for the licensee to submit to a physical or mental examination by a qualified provider selected by the disciplinary committee at the expense of the licensee. In selecting a qualified provider, the committee, on behalf of the board, shall consider the provider's credentials.
(i) The order requiring physical or mental examination shall provide the following:
exam.
(ii) The disciplinary committee, board staff, or both shall receive the original detailed, written report of the examiner which includes the examiner's findings, identification and results of all tests performed on the licensee. The report shall further include the examiner's diagnoses and conclusions, together with like reports of any prior examinations of the same, similar, or other relevant condition revealed to, or known by the examiner, as part of the examiner's intake of the licensee's medical/treatment history;
(iii) The board office shall provide a copy of examiner's report to the examined licensee;
(iv) When submitting to a competency examination ordered by the disciplinary committee pursuant to W.S. 33-21-146(a)(xi) and these rules, the licensee must, prior to the exam, submit a written release to the provider waiving the patient-clinician privilege of confidentiality regarding the ordered examination and any subsequent examinations relative to the same issue; the licensee must further provide the board office with a copy of the waiver prior to any examination. Failure to waive the privilege, in writing, or failure to provide the board office with a copy of the waiver as required herein, or both, shall constitute conclusive evidence that the licensee has failed to submit to a competency evaluation in violation of W.S. 33-21-146(a)(xi).
(c) Upon completion of the investigation and review of the original complaint form and all investigatory materials, including competency examination reports as set forth in this section, the disciplinary committee may:
(ii) Recommend the board approve a settlement agreement in accordance with the board's authority set forth in the Wyoming Nurse Practice Act, the rules and regulations, and the Wyoming Administrative Procedure Act. Such agreements may include the imposition of restrictions, conditions, reprimand, discipline, or a combination thereof;
(iii) Initiate formal disciplinary proceedings and recommend the board impose disciplinary action against the licensee including revocation, suspension, reprimand, restriction, or non-renewal of the license or certificate;
(iv) Recommend the board issue an order summarily suspending a license if the committee finds the licensee presents a clear and immediate danger to the public health, safety and welfare if allowed to continue to practice.
(d) The board may resolve a complaint by:
(i) Approving the disciplinary committee's recommendations;
(ii) Conducting a contested case hearing. Following the hearing and deliberation of all evidence admitted at a contested case hearing, the board may:
(A) Dismiss the complaint due to lack of clear and convincing evidence;
(B) Not impose discipline due to significant mitigating factors;
(C) Impose discipline by revocation, suspension, reprimand, restriction, condition, non-renewal, or a combination thereof, for violation of any provision of the Wyoming Nurse Practice Act or the rules and regulations.
(e) Disciplinary committee members shall not take part in the consideration or deliberation of any contested case in which they have participated in the investigation. Disciplinary committee members and board staff may testify in a contested case hearing.
(f) Members of the disciplinary committee or board staff may attend a contested case hearing.
(g) Any board order imposing discipline against a licensee shall be deemed a public record and be available for inspection and dissemination in accordance with all federal and state laws.
(a) Prior to commencing formal proceedings for discipline of a licensee, board staff on behalf of the disciplinary committee, shall send a notice of intent to initiate formal disciplinary action by mail to the last address of the licensee. The notice of intent shall include a brief description of the facts or conduct which warrant the intended action, and provide the licensee an opportunity to show compliance with all lawful requirements for the retention of the license.
(b) The opportunity to show compliance shall expire fifteen (15) days from the date of mailing the notice of intent.
(a) Formal proceedings for disciplinary action against a licensee shall be commenced by serving a notice of hearing and petition and complaint by certified and regular mail, or personal service to the last address provided to the board by the licensee at least twenty (20) days prior to the date set for hearing.
(b) There shall be a presumption of lawful service when the notice of hearing and petition and complaint are:
(i) Sent to the last address of the respondent/licensee by certified or regular mail.
(c) The Notice of Hearing shall contain:
(i) The name and last address of the respondent/licensee;
(ii) A statement in ordinary and concise language of the matters asserted, which shall contain the nature of the complaint filed with the board, the facts upon which the complaint is based, the specific statutory provisions and the specific board rules and regulations that the respondent/licensee is alleged to have violated;
(iii) The time, place and nature of the hearing;
(iv) The legal authority and jurisdiction under which the hearing is being held; specifically, that the hearing is being held pursuant to the board's authority under W.S. 33-21-122(c)(viii);
(v) A statement indicating that failure to respond to the complaint within twenty (20) days of its receipt may result in a default judgment.
(a) The board may enter an order of default judgment based on the allegations contained in the petition and complaint in any case where the respondent/licensee has not responded to the petition and complaint or in any case in which the respondent/licensee or the respondent/licensee's representative has not appeared at a scheduled, properly noticed hearing.
(a) Applications. Every application, including renewal applications, for a license, permit or certificate issued by the board is subject to investigation to determine if the licensee or applicant satisfies the requirements set forth in the Wyoming Nurse Practice Act and these rules and regulations. Accordingly, each application is subject to an investigative process.
(b) Types of applications:
(i) Renewal Applications. A renewal applicant is an individual who currently holds a license or certificate, and has timely and sufficiently submitted an application for renewal of the license or certificate. 'Temporary permit' holders are not 'renewal applicants', as temporary permits expire and are not renewed.
(A) If the renewal application reveals any information which merits further investigation, the matter shall be assigned to the disciplinary committee, and the disciplinary investigative process shall apply as if a written complaint form had been filed against the licensee.
(ii) New Applications. A “new applicant” is an individual, who is attempting to obtain a license, permit, or certificate issued by the board, whether by endorsement or exam. This category also includes licensees previously issued a license, permit or certificate by this board, but whose previously issued license, permit, or certificate expired, was surrendered by the licensee, or was revoked by the board.
(A) If the new application reveals any information which merits further investigation, the matter shall be assigned to the application review committee, and the application review investigative process set forth in this chapter, shall apply.
(iii) Incomplete Applications. An incomplete application requires no action by the application review committee or board, until such time as the application is deemed “complete” by board staff, on behalf of the board, and has been reviewed for recommendations by the application review committee. Any new application, which remains incomplete, one year from the date of its original receipt by the board office, shall expire. An application is “incomplete”, when material and requisite information has not been provided as part of the application process. Such information, may include, but is not limited to:
(A) Failure by the applicant to complete or answer any information requested on the application form;
(B) Failure by the applicant to demonstrate lawful presence in accordance with Federal Law;
(C) Failure by the applicant to respond to any application review committee inquiry or to produce any documents or information requested by the application review committee;
(D) Failure by the applicant to provide payment for application fees. If any payment is made by the applicant, processed, and rejected or returned to the board, regardless of the reason, the applicant has failed to provide proper payment for application fees;
(E) Any form of “insufficient funds” constitutes failure of the applicant to provide proper payment of fees;
(F) Failure by the applicant to provide the board with any document or information needed by the board to assess whether the applicant meets all requisites for licensure and poses no risk of harm to the public.
(c) Application Review Committee. Any matter relating to the application which board staff determines merits further investigation shall be assigned to an application review committee. All such matters shall be investigated by the board’s designate. The application, any relevant documentary inclusions with the application and all investigatory information obtained as part of the investigation shall be submitted to an application review committee, consisting of at least one (1) or more designated board members, assigned to review the matter. Any board staff member reviewing or compiling information related to the application may also be deemed an application review committee member.
(d) In cases where the physical or mental condition of an applicant is at issue, the application review committee, on behalf of the board, may issue an order for the applicant to submit to a physical or mental examination by a qualified provider selected by the application review committee at the expense of the licensee. In selecting a qualified provider, the committee, on behalf of the board, shall consider the provider’s credentials.
(i) The Order requiring physical or mental examination shall provide the following: (A) Reasonable notice to the applicant to be examined; (B) The time, place, manner, conditions, and scope of exam; and (C) Identification of the person or persons who will perform the exam.
(ii) The application review committee, board staff, or both shall receive the original, detailed, written report of the examiner which includes the examiner's findings, identification and results of all tests performed on the applicant. The report shall further include the examiner's diagnoses and conclusions, together with like reports of any prior examinations of the same, similar, or other relevant condition(s) revealed to, or known by the examiner, as part of the examiner's intake of the applicant's medical/treatment history;
(iii) The board office shall provide a copy of examiner's report to the examined applicant;
(iv) When submitting to a competency examination ordered by the application review committee pursuant to W.S. 33-21-146(a)(xi) and these rules, the applicant must, prior to the exam, submit a written release to the provider waiving the patient-clinician privilege of confidentiality regarding the ordered examination and any subsequent examinations relative to the same issue; the applicant must further provide the board office with a copy of the waiver prior to any examination. Failure to waive the privilege, in writing, or failure to provide the board office with a copy of the waiver as required herein, or both, shall constitute conclusive evidence that the applicant has failed to submit to a competency evaluation in violation of W.S. 33-21-146(a)(xi).
(e) Upon completion of the investigation and review of the application and all investigatory material, including competency examination report(s), the application review committee may:
(i) Approve and recommend a license, certificate, or permit be issued;
(ii) Recommend the board approve a settlement agreement in accordance with the board's authority as established in the Wyoming Nurse Practice Act, the board's rules and regulations, and the Wyoming Administrative Procedure Act. Such agreements may include the issuance of a license with the imposition of restrictions, conditions, discipline, or a combination thereof;
(iii) Deny the application by sending a letter of denial to the applicant's last address by certified and regular mail. The letter of denial shall notify the applicant of the right to request a contested case hearing regarding the denial of the application;
(iv) Table any recommendation or action on any application if the application is incomplete, or the application review committee determines further information and investigation is necessary.
(f) Applicant's Request for Hearing.
(i) If the application review committee denies the application with a letter of denial, the applicant may request a contested case hearing regarding the denial of the application. The applicant's request for a hearing must be submitted to the board, in writing, and must be received by the board within thirty (30) days from the date of mailing of the letter of denial. If a written request for a contested case hearing is not received by the board office from the applicant within the thirty (30) day period, the application review committee's denial of the application shall be final.
(g) If the committee recommends a denial, the denial letter must contain:
(i) A brief description of the facts or conduct which warrant the denial of licensure or certification;
(ii) A statement, in ordinary and concise language of the nature of the actions which warrant the denial, the facts upon which the denial is based, the specific statutory provisions or the specific board rules and regulations involved;
(iii) Notice of the right to a hearing if a written request is received in the board office within thirty (30) days of the date of mailing the letter of the denial.
(a) If a written request for hearing is received by the board office from the applicant within the thirty (30) day period, the board office, on behalf of the application review committee shall serve a Notice of Hearing by certified and regular mail, or personal service to the applicant at least twenty (20) days prior to the date set for hearing. Such service shall be made to the last address provided to the board by the applicant.
(b) There shall be a presumption of lawful service when the Notice of Hearing is:
(i) Sent to the last address of the applicant by certified or regular mail.
(c) The Notice of Hearing shall contain:
(i) The name and last address of the applicant;
(ii) A statement in ordinary and concise language, of the matters asserted, which shall contain the nature of the issues relating to the denial of the application, the facts upon which the denial is based, the specific statutory provisions, and the specific board rules and regulations the applicant is alleged to have violated or with which the applicant has failed to comply;
(iii) The time, place, and nature of the hearing;
(iv) The legal authority and jurisdiction under which the hearing is being held; specifically, that the hearing is being held pursuant to the board's authority under W.S. 33-21-122(c)(viii).
(d) Application review committee members shall not take part in the consideration or deliberation of any contested case if they have participated in the investigation or denied the application. Application review committee members and board staff may testify at a contested case hearing.
(e) Members of the application review committee or board staff may attend a contested case hearing.
(a) All written motions made to the board prior to the contested case hearing, shall be submitted to the board office ten (10) days prior to the date set for the hearing.
(b) The board may, within its discretion and upon good cause shown, consider a written motion filed after the deadline has passed.
(a) When formal proceedings are initiated, the case shall be assigned a number and entered upon a docket provided for such purpose.
(b) A separate file shall be established for each docketed case and shall contain all papers, pleadings, documents, transcripts, evidence, and exhibits pertaining to the case.
(a) In all formal proceedings before the board, discovery shall occur in accordance with the Wyoming Administrative Procedure Act.
(b) Copies of all written requests for discovery and written discovery responses shall be sent to the board office.
(a) All matters relating to the issuance and enforcement of subpoenas shall be governed by the Wyoming Administrative Procedure Act.
(b) The executive director or the Office of Administrative Hearing shall issue a subpoena for appearance or for production of documents upon receipt of the written application for same by any party to the case:
(i) Written requests for subpoenas for production of documents shall describe, with particularity, the materials requested.
(a) All persons testifying at a hearing before the board shall stand and be administered a standard oath.
(b) No testimony will be received from a witness except under oath or affirmation.
(c) The party calling a witness shall bear the costs associated with the witness's appearance.
(a) Any licensee or applicant may represent self or be represented by counsel that is licensed to practice law in the State of Wyoming.
(b) Any attorney representing a licensee or applicant shall submit a written entry of appearance immediately following the commencement of the attorney-client relationship. The entry of appearance shall deem the attorney an attorney of record.
(c) A motion to withdraw from representation of a licensee or applicant shall be made by an attorney of record in writing and submitted to the board no less than ten (10) days prior to a contested case hearing.
(d) An attorney assigned by the Attorney General's Office to litigate on behalf of any of the board committees shall present all matters enumerated in any petition and complaint or notice of hearing.
(e) An attorney assigned by the Attorney General's Office to advise the board shall advise the adjudicating board members during, and following, any contested case proceeding.
(a) As nearly as practicable the order of procedure at any hearing before the board shall be as follows:
(i) The presiding officer of the board shall call the meeting to order and turn the meeting over to the hearing examiner. The hearing examiner shall convene the hearing and announce the docket number and title of the matter and case to be heard. The hearing examiner shall identify the quorum members deciding the matter and shall hear and rule upon all preliminary issues submitted to the hearing examiner;
(ii) Each party to the contested case proceeding, or the party's legal representative, may present an opening statement. The board may direct the hearing examiner limit the time permitted for opening statements;
(iii) The assigned litigating attorney representing the disciplinary committee shall proceed first, by presenting evidence in support of the petition and complaint. When the assigned litigating attorney is representing the application review committee, the applicant (or the applicant's attorney of record) shall proceed first by presenting evidence in support of the application. All exhibits offered by and on behalf of the disciplinary or application review committees shall be identified by letters of the alphabet beginning with 'A', and all exhibits offered by or on behalf of the licensee or applicant shall be identified with numbers commencing with '1';
(iv) All witnesses may be examined and cross-examined by the parties or by their respective attorneys;
(v) Rebuttal evidence may be allowed at the discretion of the hearing examiner;
(vi) Each party or their attorney may present a closing argument. The board may direct that the hearing examiner limit the time permitted for closing arguments;
(vii) At the conclusion of the contested case hearing, the hearing examiner shall dismiss and excuse all witnesses and declare the hearing closed. The case shall then be taken under advisement for the board's quorum to deliberate upon the matter.
(a) The board shall make and enter a written decision and order containing findings of fact and conclusions of law, stated separately.
(i) The decision and order shall be sent by certified mail to the licensee or applicant or their attorneys.
(ii) This rule does not preclude the board from giving preliminary, non-binding notice to the parties prior to the filing of the board's written decision and order.
(iii) Unless otherwise ordered by the board, all decisions of the board shall be effective at the time of the filing of the written decision and order.
(a) In a contested case the proceedings including all testimony, shall be reported verbatim by a competent reporter or by other methods deemed sufficient by the board.
(a) In the event that a licensee is disciplined, the board staff, on behalf of the board, may require the licensee to surrender the unencumbered license, permit or certificate to the board office.
(a) Appeals from decisions of the board are governed by the Wyoming Administrative Procedure Act and Wyoming Rules of Appellate Procedure.
(b) Costs of transcripts and any reasonable costs assessed by the board regarding the record on appeal shall be borne by the party making the appeal.