20:78:05:01.  Applicability. The following procedure applies to contested case proceedings for license, permit, or certificate applications and to disciplinary proceedings before the Board of Medical and Osteopathic Examiners.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-32, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-9B-8, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-13, 36-10B-14, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-6, 36-36-13.

          20:78:05:02.  Petitions for hearing. An applicant for a license, permit, or certificate issued by the board may file a petition for hearing at any time during the processing of an application. The executive secretary may file a petition for hearing to initiate a disciplinary proceeding against a licensee. A petition for hearing shall be signed by the petitioner and contain the following information: the name and address of the applicant or licensee, the basis for the request for hearing, recitation of the applicable statutes or regulations under which the petitioner is requesting board action, and the relief requested by the petitioner.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:03.  Filing of petitions for hearing. All petitions for hearing shall be filed with the executive secretary, who shall maintain the record of contested case proceedings held before the board.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:04.  Scheduling of hearing. Upon receipt of a petition for hearing, the board president may appoint an examiner to conduct the contested case hearing, or may schedule the contested case hearing before the board, as authorized by applicable statutes.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:05.  Hearing procedure. Contested case hearings shall be conducted in accordance with SDCL 1-26. The parties to a hearing are the executive secretary and the applicant or licensee. A board member who has participated in any investigation of the matter before the board shall disqualify himself from all deliberations and decisions.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:06.  Final board decision. If the board hears the proceeding itself, it shall issue a final decision and require the parties to submit proposed findings of fact and conclusions of law for consideration at the board's next meeting. If a hearing examiner hears the proceeding, the examiner shall issue a proposed decision including findings of fact and conclusions of law. The examiner shall serve the proposed decision upon the board and the parties. The board may request that the parties appear before it to present oral argument and objections to the examiner's proposed decision. The board shall issue a final decision and accept, reject, or modify the findings, conclusions, and decisions of the examiner.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:07.  Notice of decision. The board shall issue a notice of decision, accompanied by the final board decision and findings of fact and conclusions of law, to the applicant or licensee and executive secretary.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

          20:78:05:08.  Assessment of costs of disciplinary hearings. The board may assess its costs associated with a contested case proceeding resulting in disciplinary action, against a licensee upon motion by the executive secretary. If requesting the assessment of costs, the executive secretary shall present a statement of costs to the board or hearing examiner at the time it submits proposed findings of fact and conclusions of law.

          Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 1-26-29.1.

          20:78:05:09.  Board member conflict of interest. A board member who:

          (1)  Is personally related to a party involved in a contested case proceeding or disciplinary action by two degrees of consanguinity;

          (2)  Has a direct financial interest in a party involved in a contested case proceeding or disciplinary action through employment or by contract;

          (3)  Directly supervises and is responsible for peer review of a party involved in a contested case proceeding or disciplinary action;

          (4)  Or has a spouse employed by or directly contracts with a party involved in a contested case proceeding or disciplinary action; may not participate in the proceeding or action concerning that party. The member shall make an oral statement of recusal on the record at the initiation of the hearing. A recused member may not participate in board discussions or decision-making regarding that contested case proceeding or disciplinary action.

          Source: 41 SDR 180, effective May 21, 2015.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-32, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-13, 36-10B-14, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-6, 36-36-13.

          20:78:05:10.  Board member potential conflict of interest. A potential conflict of interest is an indirect financial interest, or a personal relationship or another interest in a party involved in a contested case proceeding or disciplinary action that is different from that of the general public, that a reasonable person would believe might result in bias or prejudgment. A board member shall disclose any potential conflict of interest in a contested case proceeding or disciplinary action on the record at the initiation of the hearing, or during the hearing if the board member becomes aware of the existence of a potential conflict of interest at that time. Upon the board's own motion or the motion of a party, and considering the rule of necessity should maintenance of a quorum be an issue, the board may recuse a member with a potential conflict of interest if it determines that the potential conflict of interest raises an unacceptable risk of bias or prejudgment in the contested case proceeding or disciplinary action.

          Source: 41 SDR 180, effective May 21, 2015.

          General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

          Law Implemented: SDCL 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-32, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-13, 36-10B-14, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-6, 36-36-13.