| (a) This rule is intended to provide a procedure whereby
licensees presently subject to a board order can, if otherwise eligible,
petition for the modification or termination of their board order.
(b) The decision to modify or terminate all or any
part of a board order is at the sole discretion of the Board unless
otherwise specified in the licensee's order.
(c) A request for modification or termination of an
existing board order must be submitted in writing by the licensee
subject to the board order. The writing must specifically detail the
desired action being requested.
(d) After receipt of the licensee's petition and an
initial determination by board staff of the licensee's eligibility
for a hearing to modify or terminate their board order, a date and
time for an informal conference with the Board's enforcement committee
to consider the licensee's petition for modification or termination
of an existing board order shall be set and the licensee shall be
provided written notice.
(e) If the licensee desires to submit evidence in support
of his or her petition to modify or terminate, the licensee must submit
such evidence no less than seven calendar days prior to the informal
conference.
(f) When considering a licensee's petition for modification
or termination of a board order, the Board or the enforcement committee
may consider:
(1) evidence presented by the licensee;
(2) the existence of any pending investigations;
(3) past compliance with the board order;
(4) the existence of prior board orders;
(5) whether there has been a significant change in
circumstances that indicates that it is in the best interest of the
public and licensee to modify or terminate the board order;
(6) whether there has been an unanticipated, unique
hardship on the licensee as a result of the board order that goes
beyond the natural adverse ramifications of the disciplinary action
(i.e. impossibility of requirement, geographical problems);
(7) whether the licensee has engaged in special activities
that are particularly commendable or so meritorious as to make modification
or termination appropriate; and
(8) any other information or evidence the Board or
the enforcement committee deems necessary to make an informed decision.
(g) At the conclusion of the informal conference, the
enforcement committee shall determine whether to grant the licensee's
modification or termination request, in whole or in part. The enforcement
committee may deny the licensee's request, or recommend to the Board
that the licensee's existing order be modified or terminated.
(1) If the enforcement committee determines that a
licensee's order should be modified, the Executive Director, or their
designee, shall offer the licensee a modified agreed order with 14
days of the informal conference. If the licensee accepts the modified
agreed order, it will be presented to the Board for consideration.
(A) Additional negotiations may be held between board
staff and the licensee or the authorized representative. The members
of the enforcement committee shall be consulted and must concur with
any subsequent substantive modifications to an offered agreed order
before it is recommended to the full Board for approval.
(B) If the licensee does not accept a modified agreed
order, the licensee's petition for modification or termination is
considered denied.
(2) If the enforcement committee determines that a
licensee's order should be terminated, the recommendation to terminate
an order will be presented to the Board for consideration.
(h) The recommendations of the enforcement committee
for modification or termination of an existing order may be adopted,
modified or denied by the Board. If the Board approves a modified
agreed order with amendments or in lieu of termination of an existing
agreed order, the licensee shall have fourteen (14) days from receipt
to accept the amended agreed order by signing and returning it to
the Board. If a licensee does not sign an amended agreed order or
does not respond within the fourteen (14) days, the licensee's request
for modification or termination is denied.
(i) If either the enforcement committee or the Board
denies the licensee's petition for modification or termination, the
licensee is not entitled to a contested case hearing under §575.30
of this title (relating to Contested Case Hearing at SOAH), §801.407
of the Texas Occupations Code, or Chapter 2001 of the Texas Government
Code.
(j) Unless the original board order otherwise specifies,
modification or termination requests may be made only once a year
since the effective date of the original board order or since the
effective date of any orders subsequently granting or denying modification
or termination of the board order.
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