|(a) Purpose. The purpose of this subchapter is to establish
procedures for the handling of complaints and proceedings regarding
the unlicensed practice of medicine and other violations of the Medical
Practice Act, a rule adopted by the board, or another statute relating
to the practice of medicine by a person who is not licensed by the
board, in accordance with Occupations Code, Title 3, Subtitle B, Chapter
165, Subchapters B, C, and D.
(b) Statutory Authority. Pursuant to the authority
of §165.052 and §164.002(a) of the Act, the board may enter
a cease and desist order. The board delegates to the Executive Director
the authority to sign on behalf of the board, a Cease and Desist Order
if directed to do so by a Cease and Desist Panel after the conclusion
of a full adversarial evidentiary hearing. A panel shall be composed
of two board representatives.
(c) Referrals to other Governmental Entities.
(1) Complaints to the board regarding the unlicensed
practice of medicine and other violations of the Medical Practice
Act, a rule adopted by the board, or another statute relating to the
practice of medicine by a person who is not licensed by the board
or the performance of any medical procedure without the required permit,
registration, or license shall be routed to one or more of the following
for appropriate handling including further investigation, cease and
desist proceedings, criminal prosecution, and/or injunctive relief:
(A) the Investigation Division of the Board;
(B) the Office of the Attorney General;
(C) the Texas Department of Public Safety;
(D) the United States Drug Enforcement Administration;
(E) the Texas Department of State Health Services;
(F) the local district or county attorney's office
(G) the local law enforcement agency;
(H) any state or federal licensing board or other agency
which maintains jurisdiction over a person who is the subject of the
(2) In any instance in which the board may have concurrent
jurisdiction with another agency over the subject of a complaint under
this section, the board may pursue further investigation and appropriate
action before or after routing the complaint to another agency.
(3) The routing of a complaint to another agency as
provided by this section shall be in writing unless to do so is likely
to jeopardize any further investigation, prosecution, or injunctive
(d) Investigation of Complaints.
(1) A complaint or information that a person has committed
a violation under this Chapter shall be processed in a manner similar
to a complaint against a licensee (see Chapter 178 of this title (relating
(2) After sufficient information and evidence has been
gathered a committee of board employees designated by the Executive
Director, which may include the Executive Director, shall determine
whether the information and evidence gathered makes a prima facie
case that a violation has occurred.
(3) If the committee determines that the information
and evidence gathered indicate that a prima facie case can be made
that a violation has occurred, the complaint may be scheduled for
a cease and desist hearing.
(e) Cease and Desist Hearing.
(1) Notice. Upon receipt of information that an individual
has practiced medicine without a license, the board shall schedule
a cease and desist hearing before a panel of board representatives
at the earliest practicable time after providing the individual with
at least 30 days notice. The notice to the individual will provide
the date, time and location of a hearing to determine whether the
individual should receive a cease and desist order. The notice shall
also include all the evidence upon which Board staff will rely on
to make its case for issuance of a cease and desist order.
(2) Convening a panel.
(A) The president of the board shall appoint a two-member
panel upon a verbal or written request by board staff.
(B) The disciplinary panel shall be composed of two
members of the board, at least one of whom must be a physician.
(C) In the event of the recusal of a panel member or
the inability of a panel member to attend a cease and desist proceeding,
an alternate board member may serve on the panel upon appointment
by the president of the board.
(D) Notwithstanding the Open Meetings Act, Chapter
551, Texas Government Code, the panel may hold a meeting by telephone
conference call if immediate action is required and the convening
at one location of the disciplinary panel is inconvenient for any
member of the disciplinary panel.
(E) A hearing before a panel shall constitute a public
hearing before the board and shall be transcribed by a court reporter.
The individual who is the subject of the hearing may request a copy
of the transcription and is responsible for the costs of the copy.
Payment shall be submitted to the board within 30 days receipt of
notice of costs. If the individual fails to submit payment, the matter
shall be referred to the Office of the Attorney General for collection.
(3) Charge of the panel.
(A) The panel shall determine from the evidence or
information presented to it whether a person is practicing medicine
without a license.
(B) If the panel determines that the individual has
practiced medicine without a license, the panel shall direct the Executive
Director to issue a cease and desist order, effective immediately,
in accordance with §165.052 of the Act.
(4) Procedures before the panel.
(A) In accordance with the Act, §165.052, before
a cease and desist order may be issued, the board must provide an
individual with notice and opportunity for a hearing.
(B) To the extent practicable, the sequence of events
will be as follows:
(i) Call to Order;
(ii) Roll Call;
(iii) Calling of the Case;
(iv) Recusal Statement;
(v) Introductions/Appearances on the Record;
(vi) Opening Statements by Board Staff and Respondent;
(vii) Presentation of evidence by Board Staff;
(viii) Presentation of evidence on behalf of Respondent;
(ix) Rebuttal by Board Staff and Respondent;
(x) Closing Arguments;
(I) Argument by Board Staff;
(II) Argument by Respondent;
(III) Final Argument by Board Staff;
(xii) Announcement of Decision;
(C) A board attorney shall be designated as Counsel
to the Panel and shall be present during the hearing and deliberations
by the panel and shall advise the panel on all legal issues that arise
during the hearing including objections to evidence and other evidentiary
matters. The Counsel to the Panel shall be permitted to ask questions
of witnesses, the board staff, the attorney for the licensee and other
participants in the hearing.
(A) In accordance with the Administrative Procedure
Act (APA), §2001.081, the determination of the disciplinary panel
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 person's
affairs, necessary to ascertain facts not reasonably susceptive of
proof under those rules, and not precluded by statute.
(B) Questioning of witnesses shall be permitted with
due consideration being given to the need to obtain accurate information
and prevent the harassment or undue embarrassment of witnesses.
(C) In receiving information on which to base its determination,
the panel may accept the testimony of witnesses by telephone.
(D) Material to be presented by the individual at the
cease and desist hearing must be filed with the board at least 10
calendar days prior to the date of the scheduled hearing.
(E) Documentary evidence must be submitted in electronic
format in all cases where the Respondent has been provided notice
that a panel member will be appearing by phone.
(f) If after the issuance of a cease and desist order
the individual wishes to appeal the entry of the order, the individual
may file a petition at the Travis County District Court.
|Source Note: The provisions of this §187.83 adopted to be effective May 2, 2010, 35 TexReg 3279; amended to be effective September 18, 2011, 36 TexReg 5844; amended to be effective December 25, 2011, 36 TexReg 8551; amended to be effective September 30, 2012, 37 TexReg 7486; amended to be effective November 26, 2017, 42 TexReg 6516