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(a)Notice of the time, date and place of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the complainants and the address of record of the licensee or the licensee's authorized representative to be sent by the Board at least thirty days prior to the date of the ISC. The notice shall also provide the licensee with the rules governing the proceeding; the deadline for submitting any additional material for presentation to the board representatives; and a brief written statement of the nature of the allegations to be addressed at the ISC. If the licensee has previously been the subject of disciplinary action by the board, the licensee shall be sent proscribed notice at least ten days prior to the date of the ISC. (b)Unless a timely written request from the licensee for an informal show compliance proceeding based on written information is received, the licensee shall be scheduled to appear in person for an ISC with one or more board representatives. (c)Requests to reschedule the ISC may be granted only if the licensee is able to show that extraordinary circumstances exist such as illness, death or natural disaster, which suggest the need to reschedule the ISC. The licensee must submit a written request within five days of receipt of the notice that includes the reasons for the requested continuance. Counsel to the board shall make the determination as to whether to grant a request to reschedule. (d)Prior to the ISC, the board representatives shall be provided with the information sent to the licensee by the board staff and all information timely received in response from the licensee. If no information has been received from the licensee that shall be reported to the board representatives. (e)The ISC shall allow: (1)the board staff to present a synopsis of the allegations and the facts that the board staff reasonably believes could be proven by competent evidence at a hearing; (2)the licensee to reply to the board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing; (3)presentation of evidence by the board staff and the licensee which may include medical and office records, x rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board representatives are relevant to the proceeding; (4)representation of the licensee by an authorized representative; (5)presentation of oral or written statements by the licensee or authorized representative; (6)presentation of oral or written statements or testimony by witnesses; (7)questioning of the witnesses in a manner prescribed by the panel; (8)questioning of the licensee; (9)rebuttal by board staff; and (10)upon request by board representatives, the board staff may propose appropriate disciplinary action and the licensee or authorized representative may respond. (f)The board representatives, board staff, the licensee, and the licensee's authorized representative shall be present during the presentation of statements and testimony during the ISC. (g)Notwithstanding subsection (f) of this section, the board representatives may allow a witness to testify outside the physical presence of the licensee to protect the person from harassment and/or undue embarrassment, for personal safety concerns, or for any other demonstrated and legitimate need. If such testimony is allowed, arrangements will be made to allow the licensee to listen to the testimony contemporaneously as it is given. (h)All evidence that a licensee wishes the board representatives to consider at the ISC must be submitted to the board at least seven days before the ISC. The board representatives may refuse to consider any evidence not submitted in a timely manner. If the board representatives allow the licensee to submit late evidence, the representatives may reschedule and/or assess an administrative penalty for the late submission. (i)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. (j)At the ISC, the board representatives shall attempt to resolve disputed matters and the representatives may call upon the board staff at any time for assistance in conducting the ISC. (k)The board representatives shall prohibit or limit access to the board's investigative file by the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the public consistent with Act, §164.007. (l)Although the participants may make notes, mechanical or electronic recordings shall not be made of the ISC, settlement discussions, or mediation efforts. (m)The ISC shall be informal and shall not follow the procedures established under this title for formal board proceedings. (n)At the conclusion of the presentations, the board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations. During the deliberations by the board representatives, the board representatives shall exclude, except with agreement of the licensee, the board staff who presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the general public. Counsel of the board shall be available for assistance during deliberations. (o)The board representatives may make recommendations to dismiss the complaint or allegations. (p)Upon a determination by the board representatives that the licensee has violated the Act or board rules, the board representatives may 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).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on November 10, 2003
TRD-200307670 Donald W. Patrick,
MD, JD
Executive Director
Texas State Board of Medical Examiners
Effective date: November 30, 2003
Proposal publication date: September 5, 2003
For further information, please call: (512) 305-7016
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