TITLE 16 OCCUPATIONAL
AND PROFESSIONAL LICENSING
CHAPTER 22 PSYCHOLOGISTS AND PSYCHOLOGIST ASSOCIATES:
PART 11 COMPLAINT PROCEDURES; ADJUDICATORY
PROCEEDINGS
16.22.11.1 ISSUING AGENCY: Regulation and Licensing Department
State Board of Psychologist Examiners
[16.22.11.1 NMAC - Rp,
16.22.11.1 NMAC, 11/15/06]
16.22.11.2 SCOPE: The provisions of
Part 11 shall apply to all licensees and applicants for license entitled to
notice and hearing under the Uniform Licensing Act, (ULA) Section 61-1-1
through 61-1-33 NMSA 1978 and to any interested person who may file a complaint
against a licensee or applicant.
[16.22.11.2 NMAC - Rp,
16.22.11.2 NMAC, 11/15/06]
16.22.11.3 STATUTORY AUTHORITY: Part 11
is adopted pursuant to the Professional Psychologist Act Section 61-9-6,
61-9-13, and 61-9-14 NMSA 1978
[16.22.11.3 NMAC - Rp,
16.22.11.3 NMAC, 11/15/06]
16.22.11.4 DURATION: Permanent.
[16.22.11.4 NMAC - Rp,
16.22.11.4 NMAC, 11/15/06]
16.22.11.5 EFFECTIVE DATE: November 15,
2006 unless a later date is cited at the end of a section.
[16.22.11.5 NMAC - Rp,
16.22.11.5 NMAC, 11/15/06]
16.22.11.6 OBJECTIVE: This part
establishes procedures for filing, processing, and investigating complaints
against licensees and applicants and establishes procedures for the conduct of
adjudicatory proceedings.
[16.22.11.6 NMAC - Rp,
16.22.11.6 NMAC, 11/15/06]
16.22.11.7 DEFINITIONS: [RESERVED.]
[Refer to 16.22.1.7 NMAC]
16.22.11.8 COMPLAINT PROCEDURES
A. Inquiries
regarding filing of complaints.
(1) Inquiries made to the board or to a board
member regarding a potential complaint will be referred to the board
administrator or compliance liaison for a response.
(2) Upon receipt of an inquiry, the board
administrator or compliance liaison shall forward to the potential complainant
a complaint form with instructions on how to file the complaint. Complaints shall be submitted in writing on
the prescribed form, signed and notarized, and state the facts upon which the
complaint is based. Anonymous complaints
will not be investigated, unless the board determines an exception is valid due
to unusual circumstances.
(3) Once a complaint, is made, it will come
under the provisions of this section and cannot be withdrawn.
B. Procedures
for processing complaints. The board
administrator or compliance liaison shall:
(1) log in the date the complaint is received;
(2) determine if the subject of the complaint
is a licensed psychologist, psychologist associate or an applicant or person
otherwise within the jurisdiction of the board;
(3) assign an individual file with a complaint
number, which numbering sequence shall begin each new calendar year;
(4)
send a letter to the complainant confirming receipt of the complaint;
(5) forward the complaint to respondent with a
letter requesting a response to the allegations and any documents or materials
relevant to the complaint, unless it will impede an investigation or interfere
with the acquisition of documents or relevant papers or the development of the
case; and
(6) forward the complaint file to the chair of
the complaint committee.
C. Review
by the complaint committee.
(1) The chair of the complaint committee is
appointed by the board chair and shall consist of a board member and may
include the board administrator and compliance liaison.
(2) The complaint committee shall review the
entire complaint file to determine if the allegations in the complaint are
substantiated and constitute grounds for disciplinary action.
(3) The complaint committee or its designee
may employ experts, consultants, or private investigators to assist in
investigations of complaints.
(4) The complaint committee, or its designee,
on behalf of the board, may issue investigative subpoenas, pursuant to Section
61-1-4)A) NMSA 1978.
(5) Upon completion of an investigation and
review, the complaint committee shall submit to the full board a case summary
containing alleged violations of the code, board regulations or the act and
recommendations for disposition.
Throughout this process, confidentiality of interested parties will be
maintained.
D. Review
by the full board.
(1) Any board member or any member of the
complaint committee who is partial or who believes he is not capable of judging
a particular controversy fairly on the basis of it own circumstances shall not
participate in the decision whether to issue a notice of contemplated action
and shall not participate in the hearing, deliberation, or decision of the
board.
(2)
The board shall review the case summary presented by the complaint
committee, relevant documents, witness statements, and other pertinent
information regarding the complaint. If
the board has sufficient evidence that a violation may have occurred, the board
shall forward the evidence to the administrative prosecutor for issuance of an
notice of contemplated action.
(3) Following the issuance of a notice of
contemplated action, the board may at its option authorize a board member, or
the administrative prosecutor to confer with the applicant or the licensee for
the purpose of settlement of the complaint.
Such settlement must be approved by the board, must be with the consent
of the applicant or licensee, and shall include a knowing and intentional
waiver by the applicant or the licensee of his rights to hearing under the
Uniform Licensing Act.
(4) The board may refer a complaint to the
attorney general for injunctive proceedings or to the district attorney for
criminal prosecution.
[16.22.11.8 NMAC - Rp,
16.22.11.8 NMAC, 11/15/06; A, 02/22/13]
16.22.11.9 ADJUDICATORY
PROCEEDINGS
A. General
provisions and pre-hearing and preliminary matters.
(1) All hearings shall be conducted either by
the board or, at the election of the board, by a hearing officer.
(2) If the board appoints a hearing officer,
the hearing officer shall have authority to decide pre-hearing matters, preside
over the hearing, and direct post-hearing matters in accordance with the
requirements of the case in a manner that ensures an efficient and orderly
hearing and expedites the final resolution of the case. Except as otherwise limited in this part, the
hearing officer shall have the authority to rule on all non-dispositive
motions. If the board does not appoint a
hearing officer or if the hearing officer is unavailable or unable to proceed,
the board chair or other board member designated by the board shall have the
authority to decide pre-hearing or preliminary matters on behalf of the
board. This authority shall be in
accordance with the requirements of the case in a manner that ensures an
efficient and orderly hearing and expedites the final resolution of the case,
including, without limitation.
(a) Unopposed or stipulated motions to change
venue.
(b) Motions for continuance of a hearing
date. A motion to vacate the hearing
must contain an affirmative statement that the licensee or applicant waives his
right to a hearing held not more than sixty (60) days from the date of service
of the notice hearing.
(c) The granting of one notice of pre-emptory
excusal to each party if the notice is timely and if the pre-emptory excusal
does not result in a loss of a quorum of the board.
(d) Motions regarding discovery.
(3) The original of any papers and pleadings
shall be filed with the board. Copies
shall be sent to the hearing officer and attorneys or parties of record.
(4) The hearing officer or designated board
member shall issue appropriate orders to control the course of the proceedings.
(5) Consistent with provisions of the Uniform
Licensing Act and to the extent practicable, the rules of civil procedure for
the district courts shall apply unless the hearing officer or designated board
member orders otherwise.
(6) A request for an order shall be made by a
motion filed with the board. Except for
motions made during the course of the hearing, a motion shall be in writing. A motion shall state with particularity the
grounds for the motion and shall set forth the relief and order sought.
(7) A motion shall be accompanied by a
memorandum brief in support of the motion.
The brief shall state with particularity the grounds for the motion and
shall contain citation to authorities, statutes, and references to the
pleadings on file. If matters outside of
the pleadings are considered, a copy of the referenced material shall be
attached to the brief. Responsive briefs
shall be permitted in accordance with the rules of civil procedure for the
district courts to the extent practicable unless the hearing officer or
designated board member orders otherwise.
(8) The hearing officer or the designated
board member may order the filing of briefs or other documents and may set oral
argument on any matter.
(9) No more than two (2) continuances of the
hearing date will be granted without the approval of the board for good cause
shown.
(10 All dispositive motions shall be decided
by the board.
(11) No proposed settlement, consent agreement,
voluntary surrender of a license in lieu of prosecution, or other proposal for
the resolution of a pending disciplinary case shall be effective unless
approved by the board and executed by the board and the licensee or
applicant. The board or hearing officer
may seek information from the administrative prosecutor and the licensee or
applicant concerning circumstances of the case relevant to a consideration of
the proposed settlement or clarification of the proposed terms and
conditions. No board member is presumed
to be biased and shall not be excused based solely on the reason that the
member considered a proposed settlement, consent agreement, or other proposal
for the resolution of a pending disciplinary case. The board may submit a counterproposal for
the settlement or resolution of the case.
(12) Any proposed settlement, consent
agreement, voluntary surrender of a license in lieu of prosecution, or other
proposal for the resolution of a pending disciplinary case shall contain at
least the following:
(a) an admission of all jurisdictional facts;
an acknowledgment of the rights contained in the Uniform Licensing Act and an
express waiver of those rights and of all rights to hearing and judicial review
or any other opportunity to contest the validity of the board order in any
other proceeding or forum;
(b) a statement that the proposal resolves
only the violations alleged in the notice of contemplated action and a
statement that the board reserves the right to initiate other proceedings for
any other violations of the act or board regulations;
(c) a general nature of the evidence
underlying each alleged violation;
(d) if appropriate, a list of provisions of
the acts or practices from which the licensee or applicant will refrain in the
future;
(e) a statement of the type, terms, and
conditions of the proposed disciplinary action of the board;
(f) a statement that the licensee will be
responsible for all costs of disciplinary proceedings or a statement setting forth
the reason why the licensee should be excused from paying costs; the affidavit
of the board administrator concerning the costs incurred to date shall
accompany the proposal;
(g) a statement that the decision and order of
the board shall be a public record and reported, as required by law. If the proposed settlement involves an action
of the type specified in the Uniform Licensing Act Subsections D-(i) thru
61-1-3 K(n), NMSA 1978 or voluntary surrender of a license in lieu of
prosecution, the decision and order shall be reported by the board to the ASPPB
disciplinary data report, healthcare integrity and protection data bank
(HIPDB), and to other appropriate entities;
(h) other provisions necessary to ensure the
complete and final resolution of the proceedings.
(13) A proposal to settle a matter shall not stay
the proceedings or vacate the hearing date unless otherwise ordered by the
hearing officer or presiding officer upon the filing of a timely motion.
B. Duties
of the board administrator. The board
administrator shall:
(1) after consultation with the board or
hearing officer, issue a notice of hearing stating the date, time, and place of
the hearing;
(2) execute on behalf of the hearing officer
or board notices, scheduling orders, subpoenas, and subpoenas duces tecum, and
other routine procedural documents that facilitate the efficient conduct of
adjudicatory proceedings;
(3) maintain the official record of all papers
and pleadings filed with the board in any matter;
(4) prepare an affidavit as to costs of any
disciplinary proceeding at the conclusion of any hearing or upon request by a
party submitting a proposed settlement, consent agreement, or voluntary
surrender of a license in lieu of prosecution;
(5) prepare, certify, and file with the
district court the record of the case on appeal or review;
(6) unless the board orders otherwise, have
the authority to sign the decision of the board to grant or refuse a request to
reopen the case.
C. Conduct
of hearings.
(1) The hearing officer, or presiding officer
if the case is heard by the board, shall ensure the fair, efficient, and
orderly conduct of the hearing in accordance with the Uniform Licensing Act.
(2) Unless the board orders otherwise, a board
member hearing officer, the board chair, or presiding officer shall have the
authority to sign the written decision of the board.
(3) The board administrator shall serve the
decision of the board on the licensee or applicant in accordance with law.
(4) A motion for an order staying the
operation of a board decision shall be decided by the board.
[16.22.11.9 NMAC - Rp,
16.22.11.9 NMAC, 11/15/06]
16.22.11.10 SURRENDER
OF LICENSE
A. If
a license is restricted, suspended, or revoked by the board for any reason specified in the rules and regulations
of the board or in the act, the licensee shall immediately surrender his
license in person or by registered mail to the board.
B. If
the licensee's scope of practice is restricted or limited or otherwise subject
to conditions, the license may reflect the restriction, limitations, or
condition.
[16.22.11.10 NMAC - Rp,
16.22.11.10 NMAC, 11/15/06]
HISTORY OF 16.22.11 NMAC:
Pre-NMAC History:
Part 11 was derived from
material previously filed with the State Records Center and Archives under:
Rule No. 19, Complaint
Procedures filed 4/24/95.
Rule No. 17, Surrender of
License filed 4/24/95.
History of Repealed
Material:
16 NMAC 22.7, Complaint
Procedures - Repealed, 4/16/00
16.22.11 NMAC, Complaint Procedures
and Adjudicatory Proceedings - Repealed 11/15/06