(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 in accordance with the requirements
set forth in §164.003(b)(4) and §164.0031 of the Act[
, 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 any responses received in accordance with §164.003(f)
of the Act [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.]
(d)[(e)] Informal proceedings
shall be conducted in accordance with §164.003 and §164.0032
of the Act. The board representatives may [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 written statements
by witnesses;]
[(7)questioning of the witnesses
in a manner prescribed by the panel;]
(1)[(8)] ask questions [
questioning] of the licensee and staff, and allow clarifying
questions by staff;
(2)[(9)] allow a closing
summary [statement] by both the licensee
or the licensee's authorized representative and board staff.[;
]
[(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.]
(e)[(g) The [Notwithstanding
subsection (f) of this section, the] board representatives may
allow a complainant, [or witness] to make
an oral statement. Such statement may be given [testify]
outside the physical presence of the licensee [to protect the
person from harassment and/or undue embarrassment, for personal safety
concerns, or] for a [any other] demonstrated
and legitimate need. If such statement [testimony]
is allowed, arrangements will be made to allow the licensee to listen
to the statement [testimony] contemporaneously
as it is given.
(f)[(h)] The board representatives
may refuse to consider any information [evidence]
not submitted in a timely manner without good cause. If the board
representatives allow the licensee to submit late information [
evidence], the representatives may reschedule. [and/or
recommend an additional administrative penalty for the late submission.]
(g)[(i)] A board attorney, who
has not been involved with the preparation of the case, shall be designated
as the Hearings Counsel, and act in accordance with §164.003
and §164.0032 of the Act. [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).]
(h)[(l)] A [On]
request by a licensee to make [, the board shall make]
a recording of the ISC, as allowed by §164.003(i) of the
Act,[. 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 may be charged a
fee to cover the cost of recording the proceeding. Licensees and their
representatives may not independently record an ISC.
(i)[(m)] The ISC shall be informal
and shall not follow the procedures established under this title for
formal board proceedings.
(j)[(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.]
(k)[(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).
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 September 1, 2017
TRD-201703492 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: October 15, 2017
For further information, please call: (512) 305-7016
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