| (a) After referral of an investigation to the agency's
legal division, the Hearings Coordinator of the board shall schedule
an ISC before an ISC Panel in accordance with the requirements set
forth in §164.003(b)(4) and §164.0031 of the Act.
(b) Requests to reschedule the ISC by a licensee must
be in writing and shall be referred to the Hearings Counsel for consideration.
To avoid undue disruption of the ISC schedule, the Hearings Counsel
should grant a request applying the following guidelines:
(1) A request by a licensee to reschedule an ISC must
be in writing and may be granted only if the licensee provides satisfactory
evidence of the following requirements:
(A) A request received by the agency within five business
days after the licensee received notice of the date of the ISC, must
provide details showing that:
(i) the licensee has a conflicting event that had been
scheduled prior to receipt of notice of the ISC;
(ii) the licensee has made reasonable efforts to reschedule
such event but a conflict cannot reasonably be avoided.
(B) A request received by the agency more than five
business days after the licensee received notice of the date of the
ISC must provide details showing that an extraordinary event or circumstance
has arisen since receipt of the notice that will prevent the licensee
from attending the ISC. The request must show that the request is
made within five business days after the licensee first becomes aware
of the event or circumstance.
(2) A request by a licensee to reschedule an ISC based
on the failure of the agency to send timely notice before the date
scheduled for the ISC, as required by §164.003 of the Act, shall
be granted, provided the request is received by the agency within
five business days after the late notice is received by the licensee.
(c) Prior to the ISC, the board representatives shall
be provided with the information sent to the licensee by the board
staff and any responses received in accordance with §164.003(f)
of the Act.
(d) ISCs shall be conducted in accordance with §164.003
and §164.0032 of the Act. In addition to the requirements under
these laws, the board representatives may:
(1) ask questions of the licensee and staff, and allow
clarifying questions by staff;
(2) allow a closing summary by both the licensee or
the licensee's authorized representative and board staff.
(e) The board representatives may allow a complainant,
to make an oral statement. Such statement may be given outside the
physical presence of the licensee for a demonstrated and legitimate
need. If such statement is allowed, arrangements will be made to allow
the licensee to listen to the statement contemporaneously as it is
given.
(f) The board representatives may refuse to consider
any information not submitted in a timely manner without good cause.
If the board representatives allow the licensee to submit late information,
the representatives may reschedule.
(g) A board attorney, who has not been involved with
the preparation of the case, shall be designated as the Hearings Counsel,
and act in accordance with §164.003 and §164.0032 of the
Act.
(h) A request by a licensee to make a recording of
the ISC, as allowed by §164.003(i) of the Act, must be submitted
in writing, and received by the Board at least 15 days prior to the
date of the ISC. Deliberations of the ISC panel shall be excluded
from any such recording. The recording is part of the investigative
file and may not be released to a third party unless authorized under
the Act. The licensee may be charged a fee to cover the cost of recording
the proceeding. Licensees and their representatives may not independently
record an ISC.
(i) The ISC shall be informal and shall not follow
the procedures established under this title for formal board proceedings.
(j) At the conclusion of the presentations, the board
representatives shall deliberate in order to make recommendations
for the disposition of the complaint or allegations.
(k) The board representatives may:
(1) make recommendations to dismiss the complaint or
allegations. The dismissal of any matter is without prejudice to additional
investigation and/or reconsideration of the matter at any time;
(2) make recommendations regarding an agreed order
and propose resolution of the issues to the licensee to be reduced
to writing and processed in accordance with §187.19 of this title
(relating to Resolution by Agreed Order);
(3) defer the ISC, pending further investigation;
(4) direct that a formal Complaint be filed with SOAH;
(5) recommend to the President of the board that a
Disciplinary Panel be convened to consider the temporary suspension
or restriction of the licensee's license;
(6) recommend the imposition of an administrative penalty
pursuant to §§187.75 - 187.82 of this chapter (relating
to Procedural Rules); or
(7) recommend that a remedial plan be issued to resolve
the complaint pursuant to §187.9 of this chapter (relating to
Board Actions).
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| Source Note: The provisions of this §187.18 adopted to be effective January 6, 2002, 26 TexReg 10867; amended to be effective March 6, 2003, 28 TexReg 1884; amended to be effective June 29, 2003, 28 TexReg 4634; amended to be effective November 30, 2003, 28 TexReg 10494; amended to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394; amended to be effective January 22, 2009, 34 TexReg 341; amended to be effective December 25, 2011, 36 TexReg 8551; amended to be effective September 30, 2012, 37 TexReg 7486; amended to be effective January 20, 2014, 39 TexReg 283; amended to be effective November 26, 2017, 42 TexReg6516 |
