§1285.2. Investigations and adjudications; staff; complaints; board procedure; rulemaking authority

            A.(1) The board shall initiate a preliminary review to determine if cause exists to warrant formal investigation only upon one or more of the following:

            (a) A complaint received from a person other than an employee of the board.

            (b) Any report from a law enforcement agency, federal or state regulatory agency, reporting authority verified by the board chairman through electronic means or other means, or physician health program or other treatment program that contains information that supports an indication that a possible violation of this Part, or any rule promulgated pursuant to this Part, may have occurred.

            (c) The duly adopted motion in an executive session of the board by a two-thirds vote of the members of the board making an affirmative finding that sufficient evidence exists to conclude that a violation of this Part, or any rule promulgated pursuant to this Part, may have occurred.

            (2) The duration of any preliminary review initiated in accordance with this Subsection shall be no greater than ninety days unless extended by the board.

            (3) In a preliminary review initiated in accordance with this Subsection, the board may obtain all files and records related to the complaint and to the complainant, and may obtain no more than twenty additional files or records in connection with the review unless the board authorizes review of additional files or records.

            B. The board shall adopt rules, in accordance with the Administrative Procedure Act, to provide for the investigation of complaints against physicians and adjudication of alleged violations by physicians of any provision of this Chapter. The rules shall satisfy the minimum due process requirements of the Constitution of Louisiana and the Constitution of the United States of America and shall address, at a minimum, all of the following:

            (1) Notice of the investigation including a brief summary of the facts constituting the alleged violation to be provided to the physician no later than five business days after the board's formal investigation is initiated by a majority vote of the board members present and voting.

            (2) Time limits for initiating and completing a complaint investigation and for scheduling an adjudicatory hearing.

            (3) Informal settlements and consent decrees.

            (4) Notice of any adjudicatory hearing to be provided to the physician.

            (5) Pleadings and other motions.

            (6) Discovery.

            (7) Subpoenas and subpoenas duces tecum.

            (8) Representation of the physician by counsel of choice.

            (9) Prehearing conferences.

            (10) Procedure for conducting the adjudicatory hearing including examination of witnesses and the placement of evidence into the record.

            (11) Notice of the final decision of the board to be provided to the physician.

            C. Any final decision of the board shall be supported by a preponderance of the evidence presented at the adjudicatory hearing.

            D.(1) Prior to the board's conducting any site visit or requesting medical records from an individual licensed by the board who is not subject to an active investigation the executive director shall request approval of the board through a duly adopted motion by two-thirds vote of the board, meeting in executive session, to conduct the site visit or make the records request. The executive director shall include in the request for approval the basis upon which the site visit or records request is warranted, the number of records to be requested, if applicable, the date, time, and anticipated length of the proposed site visit, and the dates of any previous site visits. The board shall be prohibited from disclosing the identity of any individual included in the request for approval.

            (2) The provisions of Paragraph (1) of this Subsection shall apply to practice performance reviews of physicians practicing telemedicine.

            E.(1) Except as provided in Paragraph (2) of this Subsection, in connection with the notice of filing of a formal administrative complaint, the board shall notify the physician that he has the right to face any complainant at the administrative hearing unless the independent counsel rules that the complainant may remain anonymous. Prior to issuing any such ruling, the independent counsel shall review all evidence related to the complaint submitted by the complainant and the physician.

            (2) The board, through a duly adopted motion by two-thirds vote of the board, may overrule the ruling of the independent counsel relative to complainant anonymity provided for in Paragraph (1) of this Subsection.

            F.(1)(a) Subject to the conditions of Subparagraph (b) of this Paragraph, prior to offering a consent order to a person licensed by the board, the board shall make available to the person all files and records which pertain to the case against him before the board, and which are not required by law to remain confidential or which are not otherwise privileged.

            (b) The board may object to making particular files and records available as provided in Subparagraph (a) of this Paragraph. If the board makes such an objection, then the independent counsel shall review the grounds for the objection to the disclosure and may overrule the objection. If the independent counsel overrules the objection, then the board shall disclose the files and records as provided in Subparagraph (a) of this Paragraph. If the independent counsel does not overrule the objection, then the board shall not be required to disclose the files and records as provided in Subparagraph (a) of this Paragraph.

            (2)(a) Upon filing of a formal administrative complaint against a physician, all files of the board regarding the complaint which are not required by law to remain confidential or which are not otherwise privileged shall be made available to the physician through full discovery and shall be disclosed to the physician upon request. The physician may issue interrogatories or discovery requests to the investigator in the case before the board, and the investigator shall be compelled to respond as provided for in the Code of Civil Procedure. Any potential exculpatory evidence shall be disclosed to the physician whether or not requested and whether or not reduced to recorded or documentary form.

            (b) All relevant information, documents, and records gathered in an investigation of a physician shall be noted in the record or file of the case, except that the board may object to including particular material in the record or file of the case. If the board objects to including any material in the record or file of the case, then the independent counsel shall review the grounds for the objection and may overrule the objection. If the independent counsel overrules the objection, then the board shall include the material subject to the overruled objection in the record or file of the case. If the independent counsel does not overrule the objection, then the board shall not be required to include the material subject to the objection in the record or file of the case.

            (3) If the board intends to use records from any prior investigation of a physician in the case against the physician before the board, then the board shall notify the physician and his counsel of this intention, and the records shall be deemed to be records of the case before the board and subject to all applicable provisions of this Subsection.

            G. On or before March first annually, the board shall submit a report to the House and Senate committees on health and welfare which encompasses, at minimum, all of the following information from the prior calendar year for each type of healthcare professional licensed by the board, delineated by profession type:

            (1) The number of preliminary reviews conducted in accordance with Subsection A of this Section.

            (2) The number of complaints that the board received.

            (3) The number of formal investigations that the board initiated.

            (4) The number of consent decrees that licensees of the board entered into and other disciplinary actions that the board took.

            Acts 2015, No. 441, §1, eff. July 1, 2015; Acts 2018, No. 599, §1.