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RULE §187.83Proceedings for Cease and Desist Orders

(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 with jurisdiction;

    (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 complaint.

  (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 relief.

(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 to Complaints)).

  (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;

      (xi) Deliberations;

      (xii) Announcement of Decision;

      (xiii) Adjournment.

    (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.

  (5) Evidence.

    (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

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