Notice of Intended Action

Contested cases, adopt ch 16

Untitled document

ARC 7570C

VETERINARY MEDICINE BOARD[811]

Notice of Intended Action

Proposing rulemaking related to contested cases

and providing an opportunity for public comment

The Board of Veterinary Medicine hereby proposes to adopt new Chapter 16, "Contested Cases," Iowa Administrative Code.

Legal Authority for Rulemaking

This rulemaking is proposed under the authority provided in Iowa Code section 169.5.

State or Federal Law Implemented

This rulemaking implements, in whole or in part, Iowa Code chapters 17A, 169 and 272C.

Purpose and Summary

This proposed rulemaking updates the Board's contested case rules by removing outdated or redundant provisions that are covered by statute.

These rules were previously included in 811—Chapter 10.

Fiscal Impact

This rulemaking has no fiscal impact to the State of Iowa.

Jobs Impact

After analysis and review of this rulemaking, no impact on jobs has been found.

Waivers

Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Board for a waiver of the discretionary provisions, if any, pursuant to 811—Chapter 14.

Public Comment

Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Board no later than 4:30 p.m. on March 29, 2024. Comments should be directed to:

Colin Tadlock

Iowa Department of Agriculture and Land Stewardship

Wallace State Office Building

502 East 9th Street

Des Moines, Iowa 50319

Phone: 515.518.7609

Email: colin.tadlock@iowaagriculture.gov

Public Hearing

Public hearings at which persons may present their views orally or in writing will be held as follows:

February 29, 2024

10 a.m.

Second Floor Boardroom

Wallace State Office Building

Des Moines, Iowa

March 8, 2024

10 a.m.

Second Floor Boardroom

Wallace State Office Building

Des Moines, Iowa

Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking.

Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Board and advise of specific needs.

Review by Administrative Rules Review Committee

The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee's meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).

The following rulemaking action is proposed:

Item 1. Adopt the following new 811—Chapter 16:

CHAPTER 16

CONTESTED CASES

The board of veterinary medicine adopts, with the following exceptions and amendments, Uniform Rules on Agency Procedure relating to contested cases, which are published at www.legis.iowa.gov/DOCS/Rules/Current/UniformRules.pdf on the general assembly's website.

811—16.1(17A) Scope and applicability. In lieu of "(agency name)" insert "board of veterinary medicine".

811—16.2(17A) Definitions. In lieu of "(agency name)" insert "board of veterinary medicine".

"Contested case" means the same as defined in Iowa Code section 17A.2(5).

"Presiding officer" means the chairperson of the board or designee.

811—16.3(17A) Time requirements.

16.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer will afford all parties an opportunity to be heard or to file written arguments.

811—16.5(17A) Notice of hearing. The board will issue an order, notice of hearing, and statement of charges following its determination of probable cause pursuant to Iowa Code section 17A.12(2). Delivery of the notice of hearing constitutes the commencement of the contested case proceeding.

16.5(1) Notice.

a. The date, time, and location of the hearing will be set by the board. The credential holder will be notified at least 30 days prior to the scheduled hearing.

b. Notification will be in writing delivered either by personal service as in civil actions or by certified mail with return receipt requested. When the credential holder cannot be located:

(1)An affidavit will be prepared outlining the measures taken to attempt service and will become a part of the record when a notice cannot be delivered by personal service or certified mail, return receipt requested.

(2)Notice of hearing will be published once each week for three consecutive weeks in a newspaper of general circulation, published or circulated in the county of last-known residence of the credential holder. The newspaper will be selected by the secretary or designee. The first notice of hearing will be published at least 30 days prior to the scheduled hearing.

811—16.6(17A) Presiding officer. Disciplinary hearings will be conducted by the board pursuant to Iowa Code section 272C.6. The chairperson of the board will designate the presiding officer in accordance with the provisions of Iowa Code section 17A.11.

16.6(1) For nondisciplinary proceedings, any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections, appeals, and licensing must file a written request within 20 days after service of a notice of hearing.

16.6(2) In lieu of "agency (or its designee)" insert "executive secretary".

c. The board does not adopt X.6(2)"c."

i. The request would not conform to the disciplinary hearing provision of Iowa Code section 272C.6.

16.6(3) The executive secretary will issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed.

16.6(4) The board does not adopt X.6(4).

16.6(6) In lieu of "agency heads and members of multimembered agency heads" insert "the board".

811—16.9(17A) Disqualification.

16.9(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 16.9(1), the party must file a motion supported by an affidavit pursuant to Iowa Code section 17A.17(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party. If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.

If the presiding officer determines that disqualification is appropriate, the presiding officer or other person must withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer must enter an order to that effect.

811—16.12(17A) Service and filing of pleadings and other papers.

16.12(3) Filing—when required. After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding must be filed with the board.

811—16.15(17A) Motions.

16.15(5) The board does not adopt X.15(5).

811—16.17(17A) Continuances. The executive secretary has the authority to grant a continuance after consultation, if needed, with the chairperson of the board.

A request for continuance of a contested case matter must be submitted in writing to the board not later than seven days prior to the scheduled date of the hearing. Exceptions may be granted at the discretion of the executive secretary only in situations involving extenuating, extraordinary, or emergency circumstances.

811—16.19(17A) Intervention. The board does not adopt X.19.

811—16.22(17A) Default.

16.22(8) The board does not adopt X.22(8).

16.22(10) The board does not adopt X.22(10).

811—16.23(17A) Ex parte communication.

16.23(6) In lieu of "executive director" insert "executive secretary".

16.23(9) Promptly after being assigned to serve as presiding officer on a hearing panel, as a member of a full board hearing, on an intra-agency appeal, or other basis, a presiding officer must disclose to all parties material factual information received through ex parte communication prior to such assignment, unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.

16.23(10) In lieu of "(agency to designate person to whom violations should be reported)" insert "the board's executive secretary".

811—16.24(17A) Recording costs. In lieu of "(agency name)" insert "board".

811—16.25(17A) Interlocutory appeals. The board does not adopt X.25.

811—16.26(17A) Final decision. When the board presides over reception of the evidence at the hearing, its decision is a final decision.

16.26(1) When a panel of specialists presides over the reception of evidence at the hearing, the findings of fact will be considered by the board at the earliest feasible time. The decision of the board is a final decision.

16.26(2) A final decision in a contested case proceeding must be in writing and include findings of fact and conclusions of law, separately stated.

a. Findings of fact must be accompanied by a concise and explicit statement of underlying facts supporting the findings.

b. The decision must include an explanation of why the relevant evidence in the record supports each material finding of fact.

c. Conclusions of law must be supported by cited authority or by a reasoned opinion.

16.26(3) The decision or order must be promptly delivered to the parties in the manner provided by Iowa Code section 17A.12.

16.26(4) The final decision is a public record pursuant to Iowa Code section 272C.6(4).

811—16.27(17A) Appeals.

16.27(1) Appeal by party. Any adversely affected party may appeal a final decision of the board to the district court within 30 days after issuance, in accordance with Iowa Code section 17A.19.

16.27(2) Review. The board may initiate review of the decision or order on its own motion at any time within 30 days following the issuance of such a decision.

16.27(3) Notice of appeal. In lieu of "a proposed decision" insert "decision or order", and in lieu of "(agency name)" insert "board".

16.27(4) Requests to present additional evidence. In lieu of "14 days (or other time period designated by the agency)" insert "15 days". In lieu of "(board, commission, director)" insert "board".

16.27(5) Scheduling. In lieu of "(agency name)" insert "board".

16.27(6) Briefs and arguments. In lieu of "(board, commission, director)" insert "board".

811—16.28(17A) Applications for rehearing.

16.28(3) Time of filing. In lieu of "(agency name)" insert "board".

16.28(4) Notice to other parties. In lieu of "(agency name)" insert "board".

811—16.29(17A) Stays of agency actions. The board does not adopt X.29.

811—16.30(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable.

811—16.31(272C) Disciplinary hearing—fees and costs.

16.31(1) Definitions. As used in this rule in relation to a formal disciplinary action filed by the board against a credential holder:

"Deposition" means the testimony of a person taken pursuant to subpoena or at the request of the state of Iowa taken in a setting other than a hearing.

"Expenses" means costs incurred by persons appearing pursuant to subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa in a hearing or other official proceeding and shall include mileage reimbursement at the rate specified in Iowa Code section 70A.9 or, if commercial air or ground transportation is used, the actual cost of transportation to and from the proceeding. Also included are actual costs incurred for meals and necessary lodging.

"Medical examination fees" means actual costs incurred by the board in a physical, mental, chemical abuse, or other impairment-related examination or evaluation of a credential holder when the examination or evaluation is conducted pursuant to an order of the board.

"Record" means the proceedings of the hearing including, but not limited to, the transcript and any documentary evidence admitted or offered at the hearing.

"Transcript" means a printed verbatim reproduction of everything said on the record during a hearing or other official proceeding.

"Witness fees" means compensation paid by the board to persons appearing pursuant to subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa. For the purpose of this rule, compensation shall be the same as outlined in Iowa Code section 622.69 or 622.72, as applicable.

16.31(2) Disciplinary hearing fee. The board may charge a fee not to exceed the amount authorized in Iowa Code section 272C.6 for conducting a disciplinary hearing that results in disciplinary action taken against the credential holder by the board. An order assessing a fee must be included as part of the board's final decision. The order must direct the credential holder to deliver payment directly to the department of agriculture and land stewardship as provided in subrule 16.31(6).

16.31(3) Recovery of related hearing costs. The board may also recover from the credential holder the costs for transcripts, witness fees and expenses, depositions, and medical examination fees, if disciplinary action is taken. The board may assess these costs in the manner it deems most equitable in accordance with the following:

a. Transcript costs. The board may assess the transcript costs against the credential holder pursuant to Iowa Code section 272C.6(6) or against the requesting party pursuant to Iowa Code section 17A.12(7).

(1)The cost of the transcript includes the transcript of the original contested case hearing before the board, as well as transcripts of any other formal proceedings before the board that occur after the notice of the contested case hearing is filed.

(2)In the event of an appeal to the full board from a proposed decision, the appealing party must timely request and pay for the transcript necessary for use in the board appeal process.

b. Witness fees and expenses. The parties in a contested case are responsible for any witness fees and expenses incurred by witnesses appearing at the contested case hearing. In addition, the board may assess a credential holder the witness fees and expenses incurred by witnesses called to testify on behalf of the state of Iowa, provided that the costs are calculated as follows:

(1)The costs for lay witnesses will be determined in accordance with Iowa Code section 622.69. For purposes of calculating the mileage expenses allowed under that section, the provisions of Iowa Code section 625.2 do not apply.

(2)The costs for expert witnesses will be determined in accordance with Iowa Code section 622.72. For purposes of calculating the mileage expenses allowed under that section, the provisions of Iowa Code section 625.2 do not apply.

(3)The provisions of Iowa Code section 622.74 regarding advance payment of witness fees and the consequences of failure to make such payment are applicable with regard to witnesses who are subpoenaed by either party to testify at the hearing.

(4)The board may assess as costs the meal and lodging expenses necessarily incurred by witnesses testifying at the request of the state of Iowa. Meal and lodging costs shall not exceed the reimbursement employees of the state of Iowa receive for these expenses under the department of revenue guidelines currently in effect.

c. Deposition costs. Deposition costs for purposes of allocating costs against a credential holder include only those deposition costs incurred by the state of Iowa. The credential holder is directly responsible for the payment of deposition costs incurred by the credential holder.

(1)The costs for depositions include the cost of transcripts, the daily charge of the court reporter for attending and transcribing the deposition, and all mileage and travel time charges of the court reporter for traveling to and from the deposition that are charged in the ordinary course of business.

(2)If the deposition is of an expert witness, the deposition costs include a reasonable fee for an expert witness. This fee must not exceed the expert's customary hourly or daily fee, and must include the time reasonably and necessarily spent in connection with the deposition, including the time spent in travel to and from the deposition, but excluding time spent in preparation for the deposition.

d. Medical examination fees. All costs of physical or mental examinations ordered by the board pursuant to Iowa Code section 272C.9(1) as part of an investigation of a pending complaint or as a sanction following a contested case must be paid directly by the credential holder.

16.31(4) Certification of reimbursable costs. Within ten days after conclusion of a contested case hearing and before issuance of any final decision assessing costs, the secretary must certify any reimbursable costs to the board. The secretary must calculate the specific costs, certify the costs calculated, and file the certification as part of the record in the contested case. A copy of the certification must be served on each party of record at the time of the filing.

16.31(5) Assessment of fees and costs. A final decision of the board imposing disciplinary action against a credential holder must include the amount of any fee assessed. If the board also assesses costs against the credential holder, the final decision must include a statement of costs delineating each category of costs and the amount assessed. The board must specify the time period in which the fees and costs must be paid by the credential holder.

a. A party must file an objection to any fees or costs imposed in a final decision in order to exhaust administrative remedies. An objection must be filed in the form of an application for rehearing pursuant to Iowa Code section 17A.16(2).

b. The application must be resolved by the board consistent with the procedures for ruling on an application for rehearing. Any dispute regarding the calculations of any fees or costs to be assessed may be resolved by the board upon receipt of the parties' written objections.

16.31(6) Payment of fees and costs. Payment for fees and costs assessed pursuant to this rule must be made in the form of a check or money order made payable to the state of Iowa and delivered by the credential holder to the department of agriculture and land stewardship.

16.31(7) Failure to make payment. Failure of a credential holder to pay any fees and costs within the time specified in the board's decision constitutes a violation of an order of the board and is grounds for disciplinary action.

These rules are intended to implement Iowa Code chapters 17A, 169, and 272C.

Veterinary Medicine Board

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