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(a)Complaints against licensees. (1)All complaints filed by the public against board licensees must be in writing on a complaint form provided by the board and signed by the complainant. If a complaint is transmitted to the board orally or by means other than in writing and the complaint alleges facts showing a continuing or imminent threat to the public welfare, the requirement of a written complaint may be waived until later in the investigative process. (2)Complaints by the board's enforcement section shall be initiated by the opening of a complaint file. (3)The board shall maintain a log of complainants to whom the board sends a complaint form. (4)Anonymous written complaints will not be investigated, but will be logged and filed for information purposes only. (5)The board shall utilize violation code numbers to distinguish between categories of complaints. (b)Complaints against non-licensees. Complaints against persons alleged to be practicing veterinary medicine without a license may be investigated and resolved informally by the executive director. Complaints not resolved by the executive director may be referred by the board to a local prosecutor or the attorney general for legal action. (c)Investigation of complaints. (1)The policy of the board is that the investigation of complaints shall be the primary concern of the board's enforcement program, and shall take precedence over all other elements of the enforcement program, including compliance inspections. (2)The board shall investigate complaints based on the following allegations, in order of priority: (A)acts or omissions, including those related to substance abuse, that may constitute a continuing and imminent threat to the public welfare; (B)acts or omissions of a licensee that resulted in the death of an animal; (C)acts or omissions of a licensee that contributed to or did not correct the illness, injury or suffering of an animal; and (D)all other act and omissions that do not fall within categories (A) - (C) of this paragraph. (3)Upon receipt of a complaint, a letter of acknowledgment will be promptly mailed to the complainant. (4)Complaints will be reviewed every thirty (30) days to determine the status of the complaint. Parties to a complaint will be informed on the status of a complaint at least on a quarterly basis. (5)Upon receipt of a complaint, a board investigator shall review it and may interview the complainant to develop additional information. If the investigator concludes that the complaint resulted from a misunderstanding, is outside the jurisdiction of the board, or is without merit, the investigator shall recommend through the director of enforcement to the executive director that the investigation be closed. If the executive director concurs with the recommendation, the complainant will be so notified, the investigation will be closed, and the complaint file will be maintained in a secure file in the board office. If the executive director does not concur with the recommendations, the investigation will proceed. (6)If the executive director returns the complaint to the investigator with a notation of non-concurrence under paragraph (5) of this subsection, or if the executive director concurs with the investigator's determination that a potential violation exists, the licensee is furnished with a copy of the complaint, unless the executive director determines that an undercover investigation is required. If no undercover investigation is required, the investigator shall contact the licensee in writing, and request any patient records or other pertinent documents deemed necessary for the investigation. The investigator may schedule an interview with the licensee. The investigator may request a written narrative statement from the licensee. (7)After the licensee's response to the complaint is received, further investigation may be necessary to corroborate the information provided by the complainant and the licensee. During the investigation, the investigator shall interview the complainant. The investigator may request additional medical opinions, supporting documents, and interviews with other witnesses. (8)Upon the completion of an investigation, the director of enforcement shall present to the executive director a report of investigation (ROI) and a conclusion as to the probability that a violation(s) exists. If the executive director determines from the ROI that the probability of a violation involving medical judgment or practice exists, the director of enforcement shall forward a copy of the complaint file to the board secretary, who will determine whether or not the complaint should be close, further investigation is warranted, or if the licensee should be invited to respond to the complaint at an informal conference at the board offices. If the probable violation does not involve medical judgement or practice, the executive director shall not forward the complaint file to the board secretary, and the executive director shall determine whether or not the complaint should be closed, further investigation is warranted, or if the licensee should be invited to respond to the complaint at an informal conference at the board offices. If the board secretary or executive director determines that a violation has not occurred, the executive director or director of enforcement shall notify the complainant and licensee in writing of the conclusion and that the complaint is dismissed. (9)If the board secretary or executive director concludes that a probable violation(s) does exist, the executive director shall invite the licensee in writing to an informal conference to discuss the complaint made against the licensee. The letter invitation to the licensee must include a list of the specific allegations of the complaint. (d)Informal conferences (1)The informal conference is the last stage in the investigation process. The licensee has the right to waive his or her attendance at the conference. The licensee may be represented by counsel. (2)The board may be represented at the informal conference by a committee of the executive director, the board secretary (if the complaint involves medical judgement or practice), the director of enforcement, the investigator assigned to the complaint, the board's legal counsel and a public member of the board. The complainant and the licensee and the licensee's legal counsel may attend the conference. Any other attendees are allowed at the discretion of the executive director. The executive director or the director of enforcement shall conduct the conference. The board secretary, with the advice of the other members of the committee, determines the recommended disposition of a complaint involving medical judgement or practice. (3)Subject to the discretion of the executive director, the following procedure will be followed at the informal conference. The executive director shall explain the purpose of the conference and the rights of the participants, read the allegations of the complaint, and explain the possible courses of action at the conclusion of the conference. The licensee will be asked to respond to the allegations. The complainant will be allowed to make comments relevant to the allegations. Comments of the licensee and complainant must be addressed to the person conducting the conference and not to each other. In the interest of maintaining decorum, the licensee or complainant may be asked to leave the room while the other is talking with the committee. The committee may ask questions of the licensee and complainant in order to fully develop the complaint record. (4)At the conclusion of the informal conference, the board secretary or executive director, as appropriate, shall determine if a violation has occurred. If the board secretary or executive director determines that a violation has not occurred, the board secretary or executive director will dismiss the complaint, and will advise all parties of the decision and the reasons why the complaint was dismissed. (5)If the board secretary or executive director determines that a violation has occurred and that disciplinary action is warranted, the board secretary or executive director will advise the licensee of the alleged violations and offer the licensee a settlement in the form of an agreed order that specifies the disciplinary action and monetary penalty. The board secretary or executive director must inform the licensee that the licensee has a right to a hearing before an administrative law judge on the finding of the occurrence of the violation, the type of disciplinary action, and/or the amount of the recommended penalty. (6)Within 20 days after the date the licensee receives the settlement offer, the licensee must submit a written response to the board (A)accepting the settlement offer and recommended disciplinary action, or (B)requesting a hearing before an administrative law judge. (7)If the licensee accepts the settlement offer by signing the agreed order, the agreed order will be docketed for board action at the next regularly scheduled board meeting. The board may approve the agreed order as docketed, approve the agreed order with amendments, or reject the agreed order. If the board approves the agreed order with amendments, the executive director shall mail the amended agreed order to the licensee and 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 complaint will be scheduled for a hearing before an administrative law judge. If the board rejects the agreed order, the complaint may be scheduled for a hearing before an administrative law judge, or the board may direct the executive director to take other appropriate action. (e)Administrative law hearing (1)If the licensee declines the board's settlement offer, or if the licensee fails to respond timely to the offer, or if the board rejects a proposed agreed order, the investigator of the complaint shall prepare a complaint affidavit containing the complaint allegations. The signed and notarized complaint affidavit will then be reviewed by the board's legal counsel and signed by the executive director. The date the executive director signs the complaint affidavit is the official date of filing the complaint affidavit with the board. The complaint affidavit is then served on the licensee by certified mail or personal service at least ten (10) days prior to a scheduled hearing. (2)The executive director shall submit to the State Office of Administrative Hearings (SOAH) a completed Request to Docket Case requesting SOAH to set a hearing and/or assign an administrative law judge to the complaint. The board shall provide notice of the time, date, and place of the hearing to the licensee. Following issuance of a proposal for decision by the administrative law judge, the board by order may find that a violation has occurred and impose disciplinary action, or find that no violation has occurred. The board shall promptly advise the complainant of the board's action. (f)Contingency. The board president shall appoint another licensee board member to assume the duties of the board secretary in the complaint process in the event the board secretary is unable to serve in the capacity set out in this section. (g)Report to the board of dismissed complaints. The executive director or the director of enforcement shall advise the board at each scheduled meeting of the complaints dismissed since the last meeting. The information will consist of a summary of the allegations, investigation conducted, reasons for dismissal, and file number. (h)Use of Private Investigators. The executive director may approve the use of private investigators to assist in investigation of complaints where the use of board investigators is not feasible or economical or where private investigators could provide valuable assistance to the board investigators. Private investigators may be utilized in cases involving honesty, integrity and fair dealing; reinstatement applications; solicitation; fraud; dangerous drugs and controlled substances; and practicing veterinary medicine without a license. Private investigators will be utilized in accordance with existing purchasing rules of the Texas General Services Commission.
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 October 19, 2005
TRD-200504725 Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: November 8, 2005
Proposal publication date: July 1, 2005
For further information, please call: (512) 305-7555
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