(a)After referral of an investigation to the agency's legal division, the Hearings Coordinator of the board shall schedule an ISC before an ISC Panel, composed of two or more board representatives to be held after proper notice to the licensee. One board representative must be a public member. If the matter is before the Medical Board, at least one board representative must be a physician member. (b)Requests to reschedule the ISC by a licensee must be in writing and shall be referred to the Hearings Counsel for consideration. To avoid undue disruption of the ISC schedule, the Hearings Counsel should grant a request only after conferring with the Hearings Coordinator and strictly applying the following guidelines: (1)A request by a licensee to reschedule an ISC must be in writing and may be granted only if the licensee provides satisfactory evidence of the following requirements: (A)A request received by the agency within five business days after the licensee received notice of the date of the ISC, must provide details showing that: (i)the licensee has a conflicting event that had been scheduled prior to receipt of notice of the ISC; (ii)the licensee has made reasonable efforts to reschedule such event but a conflict cannot reasonably be avoided. (B)A request received by the agency more than five business days after the licensee received notice of the date of the ISC must provide details showing that an extraordinary event or circumstance has arisen since receipt of the notice that will prevent the licensee from attending the ISC. The request must show that the request is made within five business days after the licensee first becomes aware of the event or circumstance. (2)A request by a licensee to reschedule an ISC based on the failure of the agency to send timely notice before the date scheduled for the ISC, as required by §164.003 of the Act, shall be granted, provided the request is received by the agency within five business days after the late notice is received by the licensee. (c)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. Information must be received from the licensee at least five business days prior to the ISC for complaints filed before September 1, 2011. For complaints filed with the board on or after September 1, 2011, the information must be received at least 15 days prior to the date of the ISC. (d)An ISC may be conducted by only one panelist if: (1)the ISC is related to an order of the board, such as to show compliance, a probation appearance, or a request for termination or modification, or (2)the affected licensee waives the requirement that at least two panelists conduct the ISC. In such situations, the panelist may be either a physician, physician assistant, or acupuncturist (depending on the licensee involved) or a member who represents the public. (e)The board representatives shall allow: (1)the board staff to present a summary of the allegations and the facts that the board staff reasonably believes could be proven by competent evidence at a formal 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 formal 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)closing statement by the licensee; (10)closing statement by the board's staff; and (11)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 complainant or 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 received by the board at least five business days before the ISC.] The board representatives may refuse to consider any evidence not submitted in a timely manner without good cause. If the board representatives allow the licensee to submit late evidence, the representatives may reschedule and/or recommend an additional administrative penalty for the late submission. (i)A board attorney, who has not been involved with the preparation of the case, shall be designated as the Hearings Counsel and shall be present during the ISC and the panel's deliberations to advise the panel on legal issues that arise during the ISC. The Hearings Counsel shall be permitted to ask questions of participants in the ISC to clarify any statement made by the participant. The Hearings Counsel shall provide to the ISC panel a historical perspective on comparable cases that have appeared before the board, keep the proceedings focused on the case being discussed, and ensure that the board's employees and the licensee have an opportunity to present information related to the case. (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 the Act, §164.007(c). (l)On request by a licensee, the board shall make a recording of the ISC. Deliberations of the ISC panel shall be excluded from any such recording. The media format of the recording shall be determined by the board [Board]. The recording is part of the investigative file and may not be released to a third party unless authorized under the Act. The board may charge the licensee a fee to cover the cost of recording the proceeding. The licensee must provide payment 15 days prior to the date of the ISC and must submit payment with any written response to the ISC packets. Licensees and their representatives may not independently record an ISC. (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. An employee of the board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected licensee, the licensee's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations. The Hearings Counsel may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the board. (o)The board representatives may: (1)make recommendations to dismiss the complaint or allegations. The dismissal of any matter is without prejudice to additional investigation and/or reconsideration of the matter at any time; (2)make recommendations regarding an agreed order and 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); (3)defer the ISC, pending further investigation; (4)direct that a formal Complaint be filed with SOAH; (5)recommend to the President of the board that a Disciplinary Panel be convened to consider the temporary suspension or restriction of the licensee's license; (6)recommend the imposition of an administrative penalty pursuant to §§187.75 - 187.82 of this chapter (relating to Procedural Rules); or (7)recommend that a remedial plan be issued to resolve the complaint pursuant to §187.9 of this chapter (relating to Board Actions).
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 July 16, 2012
TRD-201203625 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: August 26, 2012
For further information, please call: (512) 305-7016
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