| (a) Whenever the board, through its executive committee,
determines that a licensee or certificate holder is engaged in or
about to engage in an act of fraud or a violation of the Act and the
licensee's or certificate holder's continued practice constitutes
an immediate threat to the public welfare, the board, through its
executive committee, may issue an order temporarily suspending the
licensee's or certificate holder's license without notice and without
a hearing. An order temporarily suspending a license issued by the
executive committee must be ratified by the board at its next regularly
scheduled meeting.
(b) "Immediate threat to the public welfare" means
a real and present danger to clients caused through the licensee's
or certificate holder's lack of competence, impaired status, or failure
to adequately service clients. A "real and present danger" exists
if clients have a likely exposure to or significant risk of loss of
funds or records or financial injury and is based on actual actions
or inactions of the licensee or certificate holder. The executive
committee may consider information that the licensee or certificate
holder previously committed similar actions or inactions in determining
whether the licensee or certificate holder poses an immediate threat
to commit such actions or inactions in the future.
(c) Pursuant to Chapter 551 of the Texas Government
Code (relating to Open Meetings), the executive committee may hold
a meeting by telephone conference call if immediate action is required
and the convening at one location of the executive committee is difficult
or impossible. Whenever possible, the executive committee will attempt
to provide the licensee or certificate holder with notice and an opportunity
to be present at the emergency suspension proceeding.
(d) The determination of the executive committee may
be based not only on evidence admissible under the Texas Rules of
Evidence, but may be based on information of a type on which a reasonably
prudent person commonly relies in the conduct of the licensee's or
certificate holder's affairs. Presentations by the parties may be
based on evidence or information and shall not be excluded on objection
of a party unless determined by the chair that the evidence or information
is clearly irrelevant or unduly inflammatory in nature; however, objections
by a party may be noted for the record. Witnesses may provide sworn
statements in writing or verbally and may choose to provide statements
that are not sworn. However, whether a statement is sworn may be a
factor to be considered by the executive committee in evaluating the
weight to be given to the statement. Questioning of witnesses by board
staff, the respondent or executive committee members is under the
control of the executive committee chair.
(e) The executive committee shall immediately serve
notice of the suspension on the licensee or certificate holder in
accordance with §901.5045(b) of the Act (relating to Emergency
Suspension). The suspended licensee or certificate holder shall be
provided the opportunity to request a hearing in accordance with §901.5045(c)
of the Act. The hearing shall be conducted in the manner of a contested
case pursuant to the Act, the APA, the board's rules and SOAH's rules;
provided that time limits provided in §901.5045(c) of the Act
shall control. At the close of the hearing, the ALJ shall recommend
to the executive committee whether to uphold, vacate or modify the
suspension order. If the ALJ's recommendation is to vacate the emergency
suspension order, the executive committee shall determine whether
to adopt that recommendation no later than the second business day
after it receives that recommendation.
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