(a) - (b)(No change.) (c)Investigation of complaints. (1) - (7)(No change.) (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. (A)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 and another board member (the "veterinarian members")[,] who will determine whether or not the complaint should be closed [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. (B)If the probable violation does not involve medical judgment or practice, the executive director shall [not] forward the complaint file to a committee of [the board secretary, and] the executive director, director of enforcement, the investigator assigned to the complaint, and general counsel (the "staff committee"), which shall determine whether or not the complaint should be dismissed [closed], investigated further, [ investigation is warranted,] or settled [if the licensee should be invited to respond to the complaint at an informal conference at the board offices]. (C)If the veterinarian members [ board secretary or executive director] determine [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. (D) [(9)] If the veterinarian members [board secretary or executive director] conclude [ concludes] that a probable violation(s) exists [does exist], the executive director shall invite the licensee in writing to an informal conference to discuss the complaint made against the licensee. If the veterinarian members cannot agree to dismiss or refer the complaint to an informal conference, the complaint will be automatically referred to an informal conference. The letter invitation to the licensee must include a list of the specific allegations of the complaint. (E)A complaint considered by the staff committee shall be referred to an informal conference if: (i)the staff committee determines that the complaint should not be dismissed or settled; (ii)the staff committee is unable to reach an agreed settlement; or (iii)the licensee who is the subject of the complaint requests that the complaint be referred to an informal conference. (d)Informal conferences (1)The informal conference is the last stage in the investigation of a complaint [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 conference committee of the executive director, the veterinarian members and a public member of the board [board secretary ] (if the complaint involves medical judgment or practice), the director of enforcement, the investigator assigned to the complaint, and the board's general [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, lead the discussion of [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 conference committee [board secretary or executive director, as appropriate,] shall determine if a violation has occurred. If the conference committee [board secretary or executive director] determines that a violation has not occurred, the conference committee [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 conference committee [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. With the agreement of the licensee, the conference committee may recommend that the licensee refund an amount not to exceed the amount the complainant paid to the licensee instead of or in addition to imposing an administrative penalty on the licensee. 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) - (7)(No change.) (e)Contested case [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 against the licensee. 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 shall serve as the board's pleading in a contested case. At least ten (10) days prior to a scheduled hearing, the [ The] complaint affidavit and notice of hearing shall be [ is then] served on the licensee as set out in subsection (e)(3)(A) of this section [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 contested case [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. (3)Notice of SOAH hearing; continuance and default (A)The board shall send notice of a contested case hearing before SOAH to the licensee's last known address as evidenced by the records of the board. Notice shall be given by first class mail, certified or registered mail, or by personal service. (B)If the licensee fails to timely enter an appearance or answer the notice of hearing, the board is entitled to a continuance at the time of the hearing. If the licensee fails to appear at the time of the hearing, the board may move either for dismissal of the case from the SOAH docket, or request that the administrative law judge issue a default proposal for decision in favor of the board. (C)Proof that the licensee has evaded proper notice of the hearing may also be grounds for the board to request dismissal of the case or issuance of a default proposal for decision in favor of the board. (f) - (g) (No change.) (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 Building and Procurement [General Services] Commission.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 27, 2006
TRD-200601032 Julie A.
Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: June 15, 2006
For further information, please call: (512) 305-7555
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