(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 with the consent of the non-licensee, or the Board may utilize formal cease and desist procedures specified in §801.508, Occupations Code. Complaints not resolved by the executive director may be referred 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 approximately 45 day intervals. (5)Upon receipt of a complaint, the director of enforcement will review it and may interview the complainant to develop additional information. If the director of enforcement concludes that the complaint resulted from a misunderstanding, is outside the jurisdiction of the board, or is without merit, the director of enforcement shall recommend through the general counsel to the executive director that the investigation not be initiated. If the executive director concurs with the recommendation, the complainant will be so notified. If the executive director does not concur with the recommendations, the investigation will proceed. (6)The director of enforcement will assign an investigator to the complaint, and the investigator will send a request for patient records to the licensee. Once the investigator receives the patient records, the investigator will send a copy of the complaint to the licensee, along with a request that the licensee respond to the complaint in writing within 21 days of receipt of the complaint. [ the licensee will be sent a copy of the complaint and a request for a written response to the complaint.] (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 contact the complainant. Other persons, such as second opinion or consulting veterinarians, may be contacted. The investigator may request additional medical opinions, supporting documents, and interviews with other witnesses. (8)Upon the completion of an investigation, the investigator shall prepare a report of investigation (ROI) for review by the director of enforcement, who in turn shall present the ROI to the executive director along with [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 ROI and complaint file to the board secretary and another board member (the "veterinarian members") who will 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. (B)If the probable violation does not involve medical judgment or practice (example: administrative matters such as continuing education and federal and state controlled substances certificates), the executive director shall forward the complaint file to a committee of 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, investigated further, or settled. (C)If the veterinarian members determine 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)If the veterinarian members conclude that a probable violation(s) exists, the executive director shall invite the licensee and complainant, 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. 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 an enforcement [a conference] committee of the executive director, the veterinarian members and a public member of the board [(if the complaint involves medical judgment or practice)], the director of enforcement, the investigator assigned to the complaint, and the board's general counsel. 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. (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 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 enforcement committee members 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 enforcement [conference] committee shall determine if a violation has occurred. If the enforcement [conference ] committee determines that a violation has not occurred, the enforcement [conference] committee will dismiss the complaint, and will advise all parties of the decision and the reasons why the complaint was dismissed. (5)If the enforcement [conference] committee determines that a violation has occurred and that disciplinary action is warranted, the 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 enforcement [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 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)Contested case 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 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 complaint affidavit and notice of hearing shall be served on the licensee as set out in subsection (e)(3)(A) of this section. (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. 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)Contingency. The board president shall appoint another licensee board member to assume the duties of the board secretary in the complaint review and informal conference 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 Building and Procurement 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 June 29, 2007
TRD-200702742 Loris Jones
Executive
Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 11, 2007
For further information, please call: (512) 305-7563
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