USA Statutes : nevada
Title : Title 54 - PROFESSIONS, OCCUPATIONS AND BUSINESSES
Chapter : CHAPTER 622A - ADMINISTRATIVE PROCEDURE BEFORE CERTAIN REGULATORY BODIES
As used in this chapter, unless the
context otherwise requires, the words and terms defined in NRS 622A.020
to 622A.090 , inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 2005, 743 )
1. “Contested case” and “case” have the meaning ascribed to
“contested case” in NRS 233B.032 .
2. A final decision of a regulatory body approving or denying an
application for issuance or renewal of a license is not a contested case
for the purposes of this chapter.
(Added to NRS by 2005, 743 )
“Employee” includes, without
limitation, a person who has a contract to provide services as an
independent contractor.
(Added to NRS by 2005, 743 )
“License” means any license,
certificate, registration, permit or similar type of authorization issued
by a regulatory body.
(Added to NRS by 2005, 743 )
“Licensee” means a person who
holds any license, certificate, registration, permit or similar type of
authorization issued by a regulatory body.
(Added to NRS by 2005, 743 )
“Member of a
regulatory body” means a person who is serving as a member or officer of
a regulatory body.
(Added to NRS by 2005, 743 )
“Prosecutor” means any of the
following:
1. The Attorney General or a deputy attorney general who
prosecutes a contested case pursuant to this chapter;
2. If the Attorney General and his deputies are disqualified to
act in such a matter, an attorney appointed by the Attorney General to
prosecute a contested case pursuant to this chapter; or
3. If the regulatory body is authorized to employ or retain
attorneys other than the Attorney General and his deputies, an attorney
employed or retained by the regulatory body to prosecute a contested case
pursuant to this chapter.
(Added to NRS by 2005, 743 )
“Records” means any records,
files, books, documents, papers, information or data in any form.
(Added to NRS by 2005, 743 )
1. “Regulatory body” means:
(a) Any state agency, board or commission which has the authority
to regulate an occupation or profession pursuant to this title; and
(b) Any officer of a state agency, board or commission which has
the authority to regulate an occupation or profession pursuant to this
title.
2. The term does not include any regulatory body which is exempted
from the provisions of this chapter pursuant to NRS 622A.120 , unless the regulatory body makes an
election pursuant to that section to follow the provisions of this
chapter.
(Added to NRS by 2005, 743 )
SCOPE AND APPLICABILITY
1. The following regulatory bodies are exempted from the
provisions of this chapter:
(a) State Contractors’ Board.
(b) State Board of Professional Engineers and Land Surveyors.
(c) Nevada State Board of Accountancy.
(d) Board of Medical Examiners.
(e) Board of Dental Examiners of Nevada.
(f) State Board of Nursing.
(g) Chiropractic Physicians’ Board of Nevada.
(h) Nevada State Board of Optometry.
(i) State Board of Pharmacy.
(j) Board of Examiners for Marriage and Family Therapists.
(k) Real Estate Commission, Real Estate Administrator and Real
Estate Division of the Department of Business and Industry.
(l) Commission of Appraisers of Real Estate.
(m) Commissioner of Mortgage Lending and Division of Mortgage
Lending of the Department of Business and Industry.
(n) Commissioner of Financial Institutions and Division of
Financial Institutions of the Department of Business and Industry.
(o) State Board of Health and Health Division of the Department of
Health and Human Services.
2. Any regulatory body which is exempted from the provisions of
this chapter pursuant to subsection 1 may elect by regulation to follow
the provisions of this chapter or any portion thereof.
(Added to NRS by 2005, 743 )
1. The provisions of this chapter must be interpreted so as to
effectuate their general purpose to make uniform among the regulatory
bodies that are subject to the provisions of this chapter the procedures
used to prosecute contested cases and take administrative action against
a person who violates any law or regulation governing occupational
licensing.
2. To the extent possible, the provisions of this chapter are
intended to supplement other statutory provisions governing
administrative procedure, occupational licensing and regulatory bodies,
and such other provisions must be given effect to the extent that those
provisions do not conflict with the provisions of this chapter. If there
is a conflict between such other provisions and the provisions of this
chapter, the provisions of this chapter control.
(Added to NRS by 2005, 744 )
IMMUNITY
1. A person who provides a governmental entity, officer or
employee with any information relating to a contested case is immune from
any civil liability for providing that information if the person acted in
good faith and without malicious intent.
2. A governmental entity, officer or employee is immune from any
civil liability for:
(a) Any decision or action taken in good faith and without
malicious intent in carrying out the provisions of this chapter or any
law or regulation governing occupational licensing; or
(b) Communicating or cooperating with or providing any documents or
other information to any other governmental entity, officer or employee
conducting an investigation, disciplinary proceeding or civil or criminal
prosecution.
(Added to NRS by 2005, 744 )
REGULATORY AUTHORITY
1. The provisions of this chapter do not affect or limit the
authority of a regulatory body, at any stage of a contested case, to make
an informal disposition of the contested case pursuant to subsection 5 of
NRS 233B.121 or to enter into a
consent or settlement agreement approved by the regulatory body pursuant
to NRS 622.330 .
2. The provisions of this chapter do not affect or limit the
authority of a regulatory body to designate a panel of its members to
hear a contested case pursuant to this chapter.
(Added to NRS by 2005, 744 )
ADJUDICATION OF CONTESTED CASES
1. To initiate the prosecution of a contested case, the prosecutor
shall file a charging document with the regulatory body and serve the
licensee with the charging document.
2. The regulatory body shall determine whether the case will be
heard by the regulatory body or a hearing panel or officer.
3. The regulatory body or hearing panel or officer shall provide
the licensee with written notice of the case pursuant to NRS 233B.121
and 241.034 .
4. If the case is heard by a hearing panel or officer, the hearing
panel or officer shall follow the procedures established by this chapter
and any other applicable statutory and regulatory provisions governing
the case. The hearing panel or officer shall prepare written findings and
recommendations and serve the findings and recommendations on the parties
and the regulatory body for its review.
5. The findings and recommendations of the hearing panel or
officer do not become final unless they are approved by the regulatory
body after review. In reviewing the findings and recommendations of the
hearing panel or officer, the regulatory body may:
(a) Approve the findings and recommendations, with or without
modification;
(b) Reject the findings and recommendations and remand the case to
the hearing panel or officer;
(c) Reject the findings and recommendations and order a hearing de
novo before the regulatory body; or
(d) Take any other action that the regulatory body deems
appropriate to resolve the case.
6. If the case is heard by the regulatory body, the regulatory
body shall follow the procedures established by this chapter and any
other applicable statutory and regulatory provisions governing the case.
7. The regulatory body or the hearing panel or officer, with the
approval of the regulatory body, may consolidate two or more cases if it
appears that the cases involve common issues of law or fact and the
interests of the parties will not be prejudiced by the consolidation.
(Added to NRS by 2005, 745 )
1. In any contested case against a licensee pursuant to this
chapter, the licensee may appear on his own behalf or the licensee may be
represented by:
(a) An attorney licensed to practice law in this State; or
(b) An attorney licensed to practice law in another state who is
properly associated with an attorney licensed to practice law in this
State and who provides a certificate of good standing from the licensing
authority of the other state.
2. An attorney representing a licensee shall:
(a) Ensure that his conduct complies with the Nevada Rules of
Professional Conduct; and
(b) Conform to all standards of ethical and courteous behavior
required in the courts of this State.
3. An attorney may withdraw from his representation of a licensee
upon notice to the licensee and the regulatory body or hearing panel or
officer. The notice must include the reason for the requested withdrawal.
The regulatory body or hearing panel or officer may deny the request if
there may be an unreasonable delay in the case or the substantial rights
of the licensee may be prejudiced.
4. If the regulatory body or hearing panel or officer finds that
an attorney has violated any provision of this section, the regulatory
body or hearing panel or officer may bar the attorney from participating
in the case or may impose such other sanctions as the regulatory body or
hearing panel or officer deems appropriate.
5. A licensee is responsible for all costs related to the
presentation of his defense.
(Added to NRS by 2005, 745 )
1. After being served with the charging document, the licensee
may, but is not required to, file an answer to the charging document. The
licensee may file such an answer not later than 20 days after the date of
service of the charging document.
2. The prosecutor may amend the charging document at any time
before the hearing. If the prosecutor amends the charging document before
the hearing, the prosecutor shall:
(a) File the amended charging document with the regulatory body or
hearing panel or officer; and
(b) Serve the licensee with the amended charging document.
3. After being served with an amended charging document, the
licensee may do any or all of the following:
(a) File an answer to the amended charging document. The licensee
may file such an answer not later than 20 days after the date of service
of the amended charging document or not later than the date of the
hearing, whichever date is sooner.
(b) Move for a continuance of the hearing. The regulatory body or
hearing panel or officer shall grant the continuance if the licensee
demonstrates that:
(1) The amendment materially alters the allegations in the
charging document; and
(2) The licensee does not have a reasonable opportunity to
prepare a defense against the amended charging document before the date
of the hearing.
4. The prosecutor may amend the charging document at the time of
the hearing if the amendment is not considered material and the
substantial rights of the licensee would not be prejudiced by the
amendment.
5. The charging document, any amended charging document and any
answer filed by the licensee must be made part of the record at the
hearing.
(Added to NRS by 2005, 746 )
1. At any time after being served with the charging document, the
licensee may file with the regulatory body or hearing panel or officer a
written discovery request for a copy of all documents and other evidence
intended to be presented by the prosecutor in support of the case and a
list of proposed witnesses.
2. The investigative file for the case is not discoverable unless
the prosecutor intends to present materials from the investigative file
as evidence in support of the case. The investigative file for the case
includes all communications, records, affidavits or reports acquired or
created as part of the investigation of the case, whether or not acquired
through a subpoena related to the investigation of the licensee.
3. A party may not serve any interrogatories on another party or
take any depositions relating to the case, unless permitted by the
regulations of the regulatory body.
(Added to NRS by 2005, 746 )
A
party shall not communicate either directly or indirectly with any member
of the regulatory body, any member of the hearing panel or the hearing
officer about any issue of fact or law related to the case unless the
communication:
1. Is part of a pleading, motion or other document that is
properly filed and served on all parties; or
2. Occurs while all parties are present or occurs during a meeting
or hearing for which all parties have been given proper notice, whether
or not all parties are present at that meeting or hearing.
(Added to NRS by 2005, 747 )
1. If a party fails to appear at a scheduled hearing and a
continuance has not been scheduled or granted, any party who is present
at the hearing may make an offer of proof that the absent party was given
sufficient legal notice. Upon a determination by the regulatory body or
hearing panel or officer that the absent party was given sufficient legal
notice, the regulatory body or hearing panel or officer may proceed to
consider and dispose of the case without the participation of the absent
party.
2. If the licensee fails to appear at a hearing, the regulatory
body or hearing panel or officer may accept the allegations against the
licensee in the charging document as true.
(Added to NRS by 2005, 747 )
1. Except as otherwise provided in this chapter or as permitted by
the regulatory body or hearing panel or officer, to request a ruling from
the regulatory body or hearing panel or officer on any issue of law or
procedure in a case, a party must file a written motion with the
regulatory body or hearing panel or officer.
2. A party may file only the following prehearing motions:
(a) A motion requesting a continuance or an extension of time.
(b) A motion requesting, for good cause, the recusal of the hearing
officer, a member of the hearing panel or a member of the regulatory body
from participation in the case.
(c) A motion requesting the separation of consolidated cases.
(d) A motion requesting a more definite statement regarding the
allegations in the charging document on the ground that there is not
enough information in the charging document to formulate a defense.
(e) A motion requesting dismissal of the charging document for
failure to state facts which, if true, would form a sufficient basis for
discipline.
(f) With leave of the regulatory body or hearing panel or officer,
any other motion requesting appropriate action or relief before the date
of the hearing.
3. A prehearing motion must be filed with the regulatory body or
hearing panel or officer at least 10 days before the date of the hearing.
A party who opposes the motion may file a response to the prehearing
motion not later than 7 days after the date of service of the motion.
Upon a showing of good cause, the regulatory body or hearing panel or
officer may allow a party to file such a motion or response within such
other times as the regulatory body or hearing panel or officer deems
appropriate.
4. The regulatory body or hearing panel or officer shall rule on
any prehearing motion before or on the date of the hearing. The
regulatory body may authorize the president or chairman of the regulatory
body to rule on any prehearing motion before the date of the hearing. The
hearing panel may authorize the chairman or presiding officer of the
hearing panel to rule on any prehearing motion before the date of the
hearing.
5. A party may file only the following motions after the
commencement of the hearing:
(a) After the prosecutor has concluded the presentation of his case
in chief, a motion requesting dismissal of the charging document for
failure of the prosecutor to meet his burden of proof.
(b) With leave of the regulatory body or hearing panel or officer,
any other motion requesting appropriate action or relief during the
hearing.
6. A party may file only the motions set forth in NRS 622A.390
after the close of the hearing.
(Added to NRS by 2005, 747 )
1. The prosecutor has the burden of proof in any hearing pursuant
to this chapter. The standard of proof in such a hearing is substantial
evidence.
2. Except as otherwise provided in this chapter, the regulatory
body or hearing panel or officer is not bound by strict rules of
procedure or rules of evidence when conducting the hearing, except that
evidence must be taken and considered in the hearing pursuant to NRS
233B.123 .
3. In any hearing pursuant to this chapter, the acts which
constitute grounds for initiating disciplinary action against a licensee
and the administrative penalties that may be imposed against a licensee
are set forth in the occupational licensing chapter governing the
licensee.
4. If requested by any party, the hearing or any portion of the
hearing must be transcribed. The party making the request shall pay all
costs for the transcription.
(Added to NRS by 2005, 748 )
1. Except as otherwise provided in this section, in any hearing
pursuant to this chapter, the hearing must proceed as follows:
(a) The president or chairman of the regulatory body, the chairman
or presiding officer of the hearing panel or the hearing officer shall
call the hearing to order.
(b) The parties and their representatives and the members of the
regulatory body, the members of the hearing panel or the hearing officer
must be introduced.
(c) The regulatory body or hearing panel or officer shall consider
any preliminary motions, stipulations or orders and shall address any
administrative details regarding the hearing.
(d) The regulatory body or hearing panel or officer:
(1) Shall ask the parties if they want any witness excluded
from the hearing;
(2) Shall instruct any witness who is excluded from the
hearing not to discuss the case during the course of the hearing;
(3) Shall allow the licensee to remain in the hearing;
(4) Shall allow any person who acts as both a representative
of the prosecutor and a witness in the hearing to remain in the hearing;
and
(5) May, on its own motion, exclude any witness from the
hearing.
(e) The prosecutor may make an opening statement. After the
prosecutor has had the opportunity to make an opening statement, the
licensee may make an opening statement. The regulatory body or hearing
panel or officer may limit equally the time of the opening statement of
each party.
(f) The prosecutor may present his case by presenting evidence and
calling witnesses in the following manner:
(1) The witness must be sworn in.
(2) The prosecutor may directly examine the witness.
(3) The licensee may cross-examine the witness.
(4) If requested, the prosecutor may question the witness on
redirect examination.
(5) If requested, the licensee may question the witness on
recross-examination.
(g) After the prosecutor has had the opportunity to present his
case, the licensee may present his case by presenting evidence and
calling witnesses in the following manner:
(1) The witness must be sworn in.
(2) The licensee may directly examine the witness.
(3) The prosecutor may cross-examine the witness.
(4) If requested, the licensee may question the witness on
redirect examination.
(5) If requested, the prosecutor may question the witness on
recross-examination.
(h) A member of the regulatory body, a member of the hearing panel
or the hearing officer may question a witness at any time during the
hearing. If a witness is questioned by a member of the regulatory body, a
member of the hearing panel or the hearing officer, the party who called
the witness may request permission to ask further questions, limited to
the area addressed by the member or hearing officer. When that party has
asked those questions, the other party may request permission to ask
further questions, limited to the area addressed by the member or hearing
officer.
(i) After the prosecutor and licensee have presented their cases,
the regulatory body or hearing panel or officer may allow the prosecutor
and licensee to call rebuttal witnesses. If the prosecutor or licensee,
or both, call one or more rebuttal witnesses, each rebuttal witness must
be sworn in and questioned in the same manner as provided in paragraph
(f) or (g), as appropriate.
(j) The prosecutor may make a closing argument. After the
prosecutor has had the opportunity to make a closing argument, the
licensee may make a closing argument. The regulatory body or hearing
panel or officer may limit equally the time of the closing argument of
each party. If the licensee makes a closing argument, the prosecutor may
make a final closing argument. The regulatory body or hearing panel or
officer may limit the time of the final closing argument.
(k) If allowed by the regulatory body or hearing panel or officer,
either party may recommend specific disciplinary action to the regulatory
body or hearing panel or officer at the appropriate time.
(l) After the close of the hearing, the regulatory body or hearing
panel or officer shall deliberate and reach a decision. Not later than 60
days after the close of the hearing:
(1) If the hearing was conducted by the hearing panel or
officer, the hearing panel or officer shall prepare written findings and
recommendations and serve the findings and recommendations on the parties
and the regulatory body for its review.
(2) If the hearing was conducted by the regulatory body, the
regulatory body shall prepare a final decision in the manner provided in
NRS 233B.125 .
2. The regulatory body or hearing panel or officer may deviate
from the order of the hearing set forth in subsection 1 if the regulatory
body or hearing panel or officer:
(a) Upon a showing of good cause, deems it appropriate; or
(b) Deems it necessary to expedite or ensure the fairness of the
hearing.
(Added to NRS by 2005, 748 )
1. After the close of the hearing, a party may file only the
following motions:
(a) A motion requesting a rehearing.
(b) A motion requesting reconsideration of the findings and
recommendations of the hearing panel or officer or the final decision of
the regulatory body.
(c) A motion requesting that the final decision of the regulatory
body be vacated or modified.
(d) With leave of the regulatory body or hearing panel or officer,
any other motion requesting appropriate action or relief after the close
of the hearing.
2. A motion requesting a rehearing or reconsideration must be
filed with:
(a) The hearing panel or officer not later than 15 days after the
date of service of the findings and recommendations of the hearing panel
or officer.
(b) The regulatory body not later than 15 days after the date of
service of the final decision of the regulatory body.
3. A party who opposes the motion may file a response to the
motion not later than 7 days after the date of service of the motion.
4. The regulatory body may authorize the president or chairman of
the regulatory body to rule on the motion. The hearing panel may
authorize the chairman or presiding officer of the hearing panel to rule
on the motion.
5. A motion requesting a rehearing or reconsideration may be based
only on one of the following grounds:
(a) Newly discovered or available evidence.
(b) Error in the hearing or in the findings and recommendations or
the decision that would be grounds for reversal of the findings and
recommendations or the decision.
(c) The need in the public interest for further consideration of
the issues or evidence, or both.
6. The regulatory body or hearing panel or officer shall enter an
order ruling on the motion requesting a rehearing or reconsideration not
later than 25 days after the date on which the motion is filed. A copy of
the order must be served on each party. The regulatory body or hearing
panel or officer may:
(a) Deny the motion;
(b) Order a rehearing or partial rehearing;
(c) Order reconsideration of the findings and recommendations or
the decision; or
(d) Direct other proceedings as the regulatory body or hearing
panel or officer deems appropriate.
7. If the regulatory body or hearing panel or officer orders a
rehearing, the rehearing must be confined to the issues upon which the
rehearing was ordered.
(Added to NRS by 2005, 750 )
1. Except as otherwise provided in the Constitution of this State,
a party may not seek any type of judicial intervention or review of a
contested case until after the contested case results in a final decision
of the regulatory body.
2. Except as otherwise provided in this section, a party may seek
judicial review of a final decision of the regulatory body in accordance
with the provisions of chapter 233B of NRS
that apply to a contested case.
3. Notwithstanding the provisions of subsection 1 of NRS 233B.131
regarding transmittal of the record
of the proceeding under judicial review:
(a) The party filing the petition for judicial review shall provide
an original or certified copy of the transcript of the hearing to the
reviewing court; and
(b) The regulatory body shall provide an original or certified copy
of the remainder of the record of the proceeding under review to the
reviewing court.
(Added to NRS by 2005, 751 )
1. If a regulatory body revokes the license of a person in a
contested case pursuant to this chapter, the regulatory body shall, in
the final decision of the regulatory body ordering the revocation,
prescribe a period during which the person may not apply for
reinstatement of the license. The period must not be less than 1 year and
not more than 10 years.
2. In addition to any other requirements set forth in the
applicable occupational licensing chapter, if a person applies for
reinstatement of a license that has been revoked in a contested case
pursuant to this chapter, the person shall:
(a) Submit an application on a form supplied by the regulatory body.
(b) Satisfy all the current requirements for the issuance of an
initial license.
(c) Attest that, in this State or any other jurisdiction:
(1) The person has not, during the period of revocation,
violated any state or federal law governing the practice of the licensed
occupation or profession or any related occupation or profession, and no
criminal or civil action involving such a violation is pending against
the person; and
(2) No other regulatory body having jurisdiction over the
practice of the licensed occupation or profession or any related
occupation or profession has, during the period of revocation, taken
disciplinary action against the person, and no such disciplinary action
is pending against the person.
(d) Satisfy any additional requirements for reinstatement of the
license prescribed by the regulatory body.
3. The regulatory body shall consider each application for
reinstatement of a license submitted pursuant to this section. In
determining whether to reinstate the license, the regulatory body shall
consider the following criteria:
(a) The severity of the act resulting in the revocation of the
license.
(b) The conduct of the person after the revocation of the license.
(c) The amount of time elapsed since the revocation of the license.
(d) The veracity of the attestations made by the person pursuant to
subsection 2.
(e) The degree of compliance by the person with any additional
requirements for reinstatement of the license prescribed by the
regulatory body.
(f) The degree of rehabilitation demonstrated by the person.
4. If the regulatory body reinstates the license, the regulatory
body may place any conditions, limitations or restrictions on the license
as it deems necessary.
5. The regulatory body may deny reinstatement of the license if
the person fails to comply with any provisions of this section.
6. The regulatory body’s denial of reinstatement of the license is
not a contested case for the purposes of judicial review.
(Added to NRS by 2005, 751 )
