SECTION 485:10-11-2. Hearings

(a)   Conduct of hearing. All hearings and notice thereof shall be conducted and governed in accordance with the provisions of the Oklahoma Administrative Procedures Act. [75 O.S. Section 309 et seq.]

(b)   Procedures before the Board.

(1)   Every individual proceeding shall be initiated by a sworn complaint containing a brief statement of the facts supporting the request for action by the Board.

(2)   The respondent shall file with the Board a written response under oath to the Complaint by the date to be furnished. If no response is filed, the Respondent shall be considered in default and the Board may take whatever action it deems sufficient and appropriate. The Executive Director of the Board or designee may extend the time within which a response must be filed, but in no event may the time be extended beyond the hearing date.

(3)   Written requests for continuances shall be received in the Board office not less than four (4) business days prior to the date and time set for the hearing. The request shall state the reasons for the request and time period desired. The Board or its designee shall promptly rule on such requests.

(4)   Discovery shall be conducted in accordance with the Administrative Procedures Act except that all discovery must be completed ten (10) days prior to the date set for hearing unless otherwise ordered by the Board.

(5)   The order of procedure at the hearing shall be as follows: (1) presentation of evidence by both parties followed by cross-examination and rebuttal of witnesses, questions by State Board members; (2) closing arguments by legal counsel of both parties; and (3) submission of case to Board for decision.

(6)   The admissibility of evidence shall be governed by the provisions of the Oklahoma Administrative Procedures Act [75 O.S. Section 310].

(7)   The President of the Board or his/her designee shall rule on admissibility of evidence and objections to such evidence and shall rule on other motions or objections in the course of the hearing.

(8)   The Board, its designee, attorney for the Board, the respondent or attorney for the respondent, may conduct examinations.

(9)   A respondent who fails to appear, after having received proper notice, may be determined to have waived the right to present a defense to the charges in the complaint and the Board may declare the respondent in default and revoke, suspend or otherwise discipline respondent as it may deem necessary.

(10)   Subpoenas for the attendance of witnesses and/or furnishing of information required by the Board staff and as requested by the respondent, and/or the production of evidence or records of any kind shall be issued by the Director of the Investigative Division or the Director's designee.

(A)   In all cases where a party desires to have subpoenas or subpoenas duces tecum issued to compel the attendance of witnesses, or production of documents, a written request shall be filed with the administrative office of the Board by such party or his attorney, and directed to the Director of the Investigative Division or the Director's designee. The Director of the Investigative Division or the Director's designee shall have three (3) business days to process the request. The request shall specify the witness by name and address; and shall identify any documents to be subpoenaed. The request shall acknowledge that any expense associated with the subpoena process shall be paid by the party requesting the subpoena, including travel expense and daily attendance fees, in the amount as set by statute for other civil matters, at the time of the service of such subpoena.

(B)   The Director of the Investigative Division or the Director's designee shall cause such subpoenas to be issued and mailed in conformity with said written requests; provided, that in said subpoena the witnesses named therein shall be advised that they may demand their travel fees and daily attendance fees from the party, or his representative; and that neither the Board nor the State of Oklahoma shall be responsible for any traveling fees, daily attendance fees, or other expenses incurred by such witness in attending any proceeding.

(C)   All requests for subpoenas and subpoenas duces tecum shall be filed with the Director of the Investigative Division or the Director's designee, no later than ten (10) business days prior to the date of the proceeding at which the presence of any such witness or documents would be required.

(D)   A party requesting issuance of subpoenas and subpoenas duces tecum shall be responsible for obtaining service and for the cost of that service.

(11)   The respondent is responsible for any expenses associated with witnesses, subpoenas and/or evidence presented on her/his behalf.

(12)   Any pre-trial motions and/or discovery motions must be filed in the Board office not less than 20 days prior to the date set for hearing unless otherwise ordered by the Board.

(13)   The respondent shall not communicate with any member of the Board concerning the matters alleged in the complaint before or during or after the hearing. This restriction does not apply to the presentation of testimony or evidence by the respondent in the course of the hearing.

(14)   If for any reason a hearing is not completed and the Board finds that the public health, safety or welfare imperatively requires emergency action, the Board may take such emergency action with regard to the respondent's license as it deems necessary in order to protect the health, safety or welfare of the public.

(15)   When a majority of the officers of the Board, those being the President, Vice President and Secretary/Treasurer, have summarily suspended an individual's license or certification pursuant to Title 59 Section 567.8(O) of the Oklahoma Statutes, none of the officers participating in the emergency summary suspension decision shall participate in the Board hearing at which the emergency summary suspension will be considered by the full Board.

(c)   Administrative Penalties. When determining the amount of the administrative penalty to be imposed for a violation of the Oklahoma Nursing Practice Act the following additional factors shall be a part of the consideration by the Board when establishing the nature, circumstance, and gravity of the violation, the degree of culpability, the effect on the ability of the person to continue to practice and any show of good faith in attempting to achieve compliance with the provisions of the Oklahoma Nursing Practice Act:

(1)   evidence of actual or potential harm to patients, clients or the public;

(2)   the seriousness of the violation, including the nature, circumstances, extent and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety and welfare of the public;

(3)   evidence of misrepresentation(s) of knowledge, education, experience, credentials or skills which would lead a member of the public, an employer, a member of the health-care team, or a patient to rely on the fact(s) misrepresented where such reliance could be unsafe;

(4)   evidence of practice history;

(5)   evidence of present lack of fitness;

(6)   evidence of prior disciplinary history by the Board or any other health care licensing agency in Oklahoma or another jurisdiction;

(7)   the length of time the licensee has practiced;

(8)   the actual damages, physical or otherwise resulting from the violation;

(9)   the deterrent effect of the penalty imposed;

(10)   attempts by the licensee to correct or stop the violation;

(11)   any mitigating or aggravating circumstances;

(12)   the extent to which system dynamics in the practice setting contributed to the problem;

(13)   evidence of a lack of truthfulness or trustworthiness;

(14)   any other matter that justice may require.

(d)   Orders.

(1)   At the conclusion of the hearing, the Board will announce its decision and a written order reviewed and signed by the Board President or other official who presided at the hearing will be issued within twenty (20) days of the Board's decision.

(2)   A copy of the order shall be delivered or mailed to the Respondent and the Respondent's attorney of record.

(e)   Record of hearing.

(1)   The record in an individual proceeding shall be as defined in the Oklahoma Administrative Procedures Act and shall also include the licensing history of the respondent.

(2)   All hearings shall be transcribed by a duly certified reporter, unless the presiding officer designates otherwise. A transcript of the proceedings shall not be made except in the event of an appeal of the decision of the Board, or upon written application accompanied by a deposit sufficient to cover the cost of transcription. Tapes and shorthand or stenotype notes of the proceedings shall be retained for a period of not less than five (5) years.

(f)   Appeals and reconsideration. Requests for reconsideration and appeals of order in individual proceeding shall be in accordance with the Oklahoma Administrative Procedures Act.

[Source: Amended at 8 Ok Reg 3579, eff 9-20-91 (emergency); Amended at 9 Ok Reg 2103, eff 6-11-92; Amended at 18 Ok Reg 2707, eff 7-1-01; Amended at 21 Ok Reg 1421, eff 7-1-04; Amended at 27 Ok Reg 1024, eff 7-1-10; Amended at 29 Ok Reg 1615, eff 7-12-12; Amended at 31 Ok Reg 2113, eff 9-12-14; Amended at 32 Ok Reg 1199, eff 8-27-15; Amended at 35 Ok Reg 1875, eff 9-14-18]