(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
including, but not limited to, written statements by witnesses.
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, in the discretion of the board
representatives, is relevant to the proceeding. This evidence 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. Explanatory
materials may include: [which in the discretion of the
board representatives are relevant to the proceeding;]
(A)written statements by witnesses
that were included in the licensee's responsive material described
in subsection (c) of this section; and
(B)presentation of oral or written
statements by complainant or a victim of an alleged sexual or assaultive
offense by a licensee.
(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
testimony by TxPHP representative, compliance officer, or other board
staff to describe the status of a licensee's compliance with a PHP
contract, board order(s), if there are allegations of non-compliance,
or applicable laws and rules;
[(6)presentation of oral or written
statements or testimony by witnesses;]
[(7)questioning of the witnesses
in a manner prescribed by the panel;]
(7)[(8)] questioning of the
licensee;
(8)[(9)] closing statement by
the licensee;
(9)[(10)] closing statement
by the board's staff; and
(10)[(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 a
victim of an alleged sexual or assaultive offense by licensee, [
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)The board representatives may refuse to consider
any written witness statement or 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. The request must be submitted in writing,
and received by the Board at least 15 days prior to the date 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. 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. 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 chapter
[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).
The agency
certifies that legal counsel has
reviewed the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 15, 2016
TRD-201603052 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 31, 2016
For further information, please call: (512) 305-7016
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