New Board Members Handbook

New Board Members Handbook 11 Rulemaking: Most agencies are empowered to promulgate rules necessary to implement or interpret the powers and duties set forth in their enabling statute. Rules must be promulgated in a specified manner so that persons whose substantial interests might be affected have notice of a proposed rule before its adoption. Emergency Rules: Agencies may take emergency action by adopting an emergency rule which temporarily bypasses the notice and hearing requirements of routine rulemaking proceedings. In doing so, the agency must find that the emergency action is necessary to forestall an immediate danger to the public health, safety and welfare. Such actions must be supported by specific facts and reasons for the finding of immediate danger which must be published in writing prior to or at the time of the action. The agency’s action may be appealed to the appellate court. Declaratory Statements A statement of the applicability of a specified statutory provision or of any rule or order of the agency as it applies to a person in his or her particular set of circumstances may be requested through a petition for declaratory statement. A board’s declaratory statement interpreting the statute, rule or order is issued in a final order and is thereafter binding upon the board. Hearings Determining Substantial Interests Persons whose substantial interests are to be determined by an agency have recourse to either evidentiary hearings before an Administrative Law Judge (ALJ) from the Division of Administrative Hearings (D.O.A.H.) or proceedings before the board. Licensing Within 30 days after receipt of an application for license, the agency must notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. Generally, every application for a license must be approved or denied within 90 days after receipt of the original application, or receipt of the timely requested additions or corrections, unless the applicant waived the 90-day requirement. Failure to abide by these timelines may result in the license being issued. Variances and Waivers A board is permitted to grant variances or waivers from the agencies’ rule requirements. The reason for this is that sometimes the strict application of a rule can lead to unreasonable and unintended results. Ex Parte Communications A board member is prohibited from having unilateral communications concerning the merits of an issue before the board or involving threats or offers of reward to the decision maker (board member) by a party or by one who is substantially interested in the proposed agency action. Judicial Review Any party who is adversely affected by a final agency action is entitled to a review by a District Court of Appeal. 3.5 Department of Health Provisions Comp laint, Investigative, and Disciplinary Procedures: The department receives all complaints and is required to investigate any legally sufficient complaint that is in writing and signed by the complainant. The determination of whether probable cause exists to believe a violation of the statutes or rules governing a license has occurred is made by a majority vote of a probable cause panel of the appropriate board or, if specified by board rule, by the department. If the probable cause panel finds probable cause exists, it shall direct the department to file a formal complaint against the licensee and prosecute the complaint.