Wyo. Code R. 056-0001-7
Optometry, Board of Examiners in
Chapter 7: Contested Case Procedure for Disciplinary Action & Application Denials
Effective Date: 11/07/2005 to 04/09/2018
Rule Type: Superceded Rules & Regulations
Reference Number: 056.0001.7.11072005
(a) Prior to filing a Petition and Complaint seeking disciplinary action against a licensee, the investigative committee, in conjunction with the prosecuting attorney assigned by the Attorney General's Office, shall mail the licensee a Letter of Intent setting forth the facts or conduct which warrant the intended disciplinary action.
(b) The Letter of Intent shall provide the licensee an opportunity to demonstrate compliance with the lawful requirements for retention of his/her license. The licensee shall have ten (10) days from receipt of the Letter of Intent to provide a written response.
(c) The Letter of Intent shall be mailed to the licensee's last known address.
(a) Notice of Hearing and the Petition and Complaint shall be served by mail or personal service 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 known address of the licensee by certified mail return receipt requested; and
(ii) Returned, marked undelivered, unclaimed or refused.
(a) Formal proceedings for board disciplinary action against a licensee shall be commenced by the filing of a Petition and Complaint and Notice of Hearing signed by the investigative committee, board staff or prosecuting attorney assigned by the Attorney General's Office.
(b) The Notice of Hearing shall contain the following information:
(i) Date, time and address for the hearing;
(ii) The nature of the hearing with a concise and ordinary statement setting for the facts upon which the underlying complaint is based as well as the applicable statutory and regulatory provision(s) involved;
(iii) The board's jurisdictional authority to hear the case;
(iv) Failure to respond to the Petition and Complaint within twenty (20) days may result in the entry of a default judgment;
(v) The licensee may represent himself/herself at the hearing or be represented by any attorney authorized to practice law in the state of Wyoming.
(a) The Petition and Complaint filed in any disciplinary matter shall include the factual basis for which disciplinary action is sought and specific citations to the statutory and regulatory provisions deemed applicable by the investigative committee and the prosecuting attorney assigned by the Wyoming Attorney General's office.
(a) The board may enter an order based on the allegations in a complaint in any case where the licensee has not responded no later than five (5) days prior to hearing, or in which the licensee or the licensee's representative does not appear at a scheduled hearing for which notice had been provided.
(a) All pre-trial motions shall be filed in writing no later than ten (10) days prior to the date set for hearing.
(i) The board or hearing officer may, for good cause shown, allow a motion to be filed at any time.
(a) In all formal proceedings before the board, discovery shall be afforded in accordance with the Wyoming Administrative Procedure Act.
(a) The issuance and enforcement of subpoenas is governed by the Wyoming Administrative Procedure Act.
(b) Subpoenas for appearance or to produce books, papers, documents, or exhibits shall be issued by the executive director or the presiding officer designated to hear the case, upon receipt of the written application for same by any party to the case:
(i) Written requests for subpoenas shall describe with particularity, the materials requested for production.
(c) The party requesting the issuance of a subpoena shall bear the costs of such issuance to the extent and in the same manner as those fees are paid in the District court of the State of Wyoming.
(a) All persons testifying at a hearing before the board shall 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) A licensee may represent himself/herself or be represented by counsel authorized to practice law in the state of Wyoming.
(b) An appearance in person or the filing of an answer or other pleadings shall constitute an appearance by an attorney.
(c) A representative of the Attorney General’s Office, designated the prosecuting attorney, shall present evidence, on behalf of the investigative committee, all matters enumerated and described in the Notice of Hearing and Petition and Complaint.
(d) A representative of the Attorney General’s Office, designated as the advisory attorney, shall be present at a hearing, if requested, for the purpose of providing legal counsel to the board.
(a) As nearly as practicable, the order of procedure at any hearing before the board shall be as follows:
(i) The hearing officer shall announce that the hearing is convened upon the call of the docket number and title of the matter and case to be heard.
(ii) Opening statement may be made by each of the parties. The hearing officer may limit the duration of opening statement at his/her or the board’s discretion.
(iii) The party who bears the burden of proof shall thereupon proceed to present the evidence related to the matters set forth in the Notice of Hearing, as well as the Petition and Complaint, when applicable. Witnesses may be cross-examined by the opposing party, and exhibits may be received into evidence in accordance with the Wyoming Administrative Procedure Act and the Wyoming Rules of Evidence. Redirect examination may be allowed following cross-examination or as follow-up to examination by the board or hearing officer.
(iv) The responding party may then present evidence, including witness testimony and exhibits as referenced in subsection (iii) above.
(v) Rebuttal evidence may be allowed at the discretion of the hearing officer.
(vi) The board and hearing officer shall have the right and opportunity to examine any witness upon the conclusion of his/her testimony.
(vii) Closing arguments may be made by each party. The party bearing the burden of proof shall proceed first, and shall be provided a rebuttal argument, if requested. The hearing officer may limit the duration of any closing argument at his/her or the board’s discretion.
(viii) After all proceedings have been concluded, the hearing officer shall dismiss and excuse all witnesses, and declare the hearing closed. Any party wishing to present written briefs of law may do so, and the presiding officer may request written briefs of law. The Board shall take the case under advisement and shall inform the licensee that the decision shall be announced within due and proper time following consideration of all matters presented at the hearing and any briefs.
(a) The board shall make and enter a written decision and order containing findings of fact and conclusions of law, stated separately.
(b) The decision and order shall be sent by certified mail to the licensee’s last known address and to the licensee’s attorneys of record by U.S. Mail.
(i) All decisions of the board shall be effective as of the time of the filing of the written decision and order.
(ii) No board member, staff member or agent of the Board who participated or advised in the investigation or presentation of evidence at the hearing shall participate or advise in the Board deliberations or decisions of the board.
(a) In a contested case, the proceedings, including all testimony, shall be reported verbatim by a competent court reporter or by other methods deemed sufficient by the board. Such other methods may include the use of tape recorders. In the case of an appeal to the district court, the appellant shall pay and arrange for a transcript of the testimony.
(a) In the event a license is suspended or revoked by the Board, surrendered for discipline or otherwise restricted as a result of a settlement agreement, the licensee shall surrender his/her current license to the Board office.
(a) Appeals from decisions of the board are governed by the Wyoming Administrative Procedure Act and the 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.
(a) Contested case proceedings requested by an applicant following denial of an application by a designated application review committee of the board, shall conform to the procedures above. The term “licensee” used above will be replaced by the term, “applicant”.
(b) Prior to a hearing on the denial of an application, the designated application review committee, in conjunction with the assigned prosecuting attorney, shall serve a Notice of Hearing upon the applicant in accordance with Sections 2 and 3 of this Chapter. The Notice of Hearing shall contain:
(i) Date, time and address for the contested case proceeding.
(ii) The nature of the hearing with a concise and ordinary statement setting for the reasons for the application being denied and the applicable statutory and regulatory provision(s) involved.
(iii) The board’s jurisdictional authority to hear the case.
(iv) Failure to appear at the proceeding will result in the entry of a default judgment.
(v) The applicant may represent himself/herself in the contested case proceeding or be represented by an attorney authorized to practice law in the state of Wyoming.
(a) A person whose license has been revoked may petition the Board for reinstatement of his/her license no sooner than two (2) years after the date of the Order revoking his/her license.
(b) A petition for reinstatement shall be accompanied by at least two (2) verified recommendations from licensed optometrists and by at least two (2) recommendations from citizens each having personal knowledge of the activities of the petitioner since the revocation was imposed. In addition, the petition must be accompanied by an application for licensure, proof of requisite continuing education, and an application fee.
(c) The petition for reinstatement and all materials set forth in subsection (b) above shall be assigned to an application review committee for recommendations to the Board. If the reinstatement is denied by the board, notice of the denial shall be sent to the applicant's last known address, certified mail, return receipt requested, and shall provide the applicant thirty (30) days to submit a written request for a hearing on the denial.
(d) If the applicant requests a hearing on the denial, the procedure for the hearing shall conform to the procedure set forth above for all applicants.
(e) Any applicant for reinstatement is required to successfully pass the jurisprudence examination given by the Board. The applicant may be required to successfully pass the clinical portion of the National Board of Examiners in Optometry Examination and any additional examinations deemed appropriate ensuring the applicant is competent to return to practice.
(a) The Wyoming Rules of Civil Procedure shall apply, insofar as they are applicable, and not inconsistent with the Wyoming Administrative Procedure Act or the Rules & Regulations of the Board.