The Texas Medical Board proposes amendments to §§187.1, 187.2, 187.4, 187.9, 187.10, 187.14 - 187.16, 187.18, 187.20, 187.21, the repeal of §187.12 and §187.17, amendments to §§187.23, 187.26 - 187.31, 187.33, the repeal of §187.32 and §187.34, amendments to §§187.36, 187.37, 187.42, 187.43, new §187.45 and an amendment to §187.56, concerning Procedural Rules.

The amendments to §187.1, §187.2 change the name of Texas Medical Board and Texas Physician Assistant Board. The amendment to §187.4 includes "other proceeding of record" among proceedings that agreements must be in writing. The amendment to §187.9 sets out standards for refunds to be ordered to be paid to patients, as required by statutory change by SB 419; clarify when tolling does not apply to locum tenens practice. The amendment to §187.10 clarifies language regarding the purpose of informal board proceedings. The amendment to §187.14 sets out standards and procedures for a committee of Board employees to recommend dismissal or propose an agreed order in an enforcement, pursuant to authority granted by SB 419. The amendment to §187.15 requires a licensee to comply with reasonable requests to produce. The amendment to §187.16 clarifies language regarding ISCs, consolidating provisions from other sections and eliminating the provision for an ISC based on written information, which has not been used. The amendment to §187.18 requires ISC panels to be composed of two members, including one public member, and one physician in the case of a case before the Medical Board; sets out more detailed standards for consideration of requests to reschedule an ISC; requires information to be provided by a licensee at least 5 business days before the date of the ISC; clarifies the role of the Hearings Counsel; clarifies the procedure for private deliberations by the ISC panel; and clarifies and cleans up language of the rule. The amendment to §187.20 requires the Board to consider previous attempts to resolve enforcement matters when it does not approve a proposed settlement agreement and determines that further action is required. The amendment to §187.21 increases the number of ISC panelists from 1 to 2, except in certain circumstances, as required by statutory changes in SB 419. The repeal of §187.12 eliminates duplicative language regarding notice of ISC that is included in §187.16. The repeal of §187.17 eliminates the rule that provides unused procedures for ISCs based on written information. The amendment to §187.23 provides that the rules of the State Office of Administrative Hearings shall govern the procedures of contested cases, except when the Board's rules provide the Board's interpretation of the Medical Practice Act and identifies statutory authority in the Administrative Procedure Act for interim appeals. The amendment to §187.26 deletes provisions for notice by publication so that SOAH rules will apply to service of Notice of Adjudicative Hearing. The amendment to §187.27 eliminates requirements that written answer in contested case must admit or deny allegations. The amendment to §187.28 eliminates Board procedures for discovery in contested cases, so that it is clear that SOAH Rules apply. The amendment to §187.29 clarifies language regarding mediation and eliminate conflicts with SOAH Rules. The amendment to §187.30 clarifies that contested case hearings must be recorded by a court reporter and eliminates confusion with SOAH rules. The amendment to §187.31 eliminates provision in conflict with SOAH Rules and clarify matters that deal with interpretations of Medical Practice Act. The amendment to §187.33 eliminates provisions in conflict with SOAH Rules. The repeal of §187.32 and §187.34 eliminates provisions in conflict with SOAH Rules. The amendment to §187.36 clarifies and cleans-up language regarding interlocutory appeals and certified questions. The amendment to §187.37 incorporates specific statutory language regarding the Board changing a finding of fact or conclusion of law recommended by an administrative law judge, as required by SB 419; sets out the Board's interpretation of §164.007(a), requiring the Board to determine the charges on the merits. The amendment to §187.42 clarifies standards and procedure for Board members to recuse themselves from voting on any enforcement matter. The amendment to §187.43 clarifies that petitions for modification or termination of a Board disciplinary order will be heard before an ISC panel and eliminate the unworkable requirement that petitions for modification and termination must be filed 20 days prior to a hearing, when a hearing has not been set. New §187.45 provides that any probationer may be required to appear before Board representatives to report on compliance and progress under the Board's order. The amendment to §187.56 makes a grammatical correction by changing "which" to "whom" and sets out statutory authority for telephone conference call for temporary suspensions.

Michele Shackelford, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendments, repeals and new rule are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed. There may be an effect to individuals required to comply with new §187.45 in that probationers may be required to incur expenses to travel to appear before the Board.

Ms. Shackelford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be conforming rules to statutory changes in SB 419; clarifying rules to provide that agreements must be in writing in any proceeding; conforming rules to new statutory requirements; providing that refunds may be ordered to be paid to patients; clarifying language of rule regarding tolling; providing more clarity and cleaning up language of rules; consolidating notice requirements for ISC into one section; expediting the processing of board orders on administrative violations of the Medical Practice Act by reducing the necessity for an ISC to be conducted; assures that licensees are only required to respond to reasonable requests for records, documents, or other information, rather than any; clarification and general clean-up of rules; elimination of procedures that have not been used; eliminating confusion regarding whether the Board's procedural rules or SOAH's procedural rules prevail in contested case hearings to assure that SOAH's rules prevail, except when the Board has interpreted the Medical Practice Act; eliminating confusion in which agency's rules apply to notice of hearings in contested cases; eliminating the necessity to file detailed answer, admitting and denying specific allegation, in contested case hearing; eliminating confusion regarding which agency's rules apply to a contested case hearing, a mediation of disputed issues in an enforcement case, procedures in a contested case and proposals for decision and exceptions to proposals for decision; providing clarity by following statutory language from the Administrative Procedure Act regarding the authority of the Board to change a finding of fact or conclusion of law recommended by an administrative law judge, as required by SB 419; clarification that the Board interprets §164.007(a) to require the Board to determine the appropriate sanction to be applied in a case and that the administrative law judges recommendation of sanction should not be included in a finding of fact or conclusion of law; providing clarity and removing ambiguous language regarding the standards and procedure by which a Board member may or should recuse themselves from voting on any enforcement matter; providing clarification that an ISC panel will consider any petition for modification or termination of a disciplinary order of the Board and eliminates the unworkable requirement that a licensee must file a petition for modification or termination on the 20th day before an uncertain date; allowing the Board to require the appearance of probationers to monitor compliance with a Board order and clarifying specific statutory authority. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §153.001 which provides the Texas Medical Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

The following statutes, articles or codes are affected by this proposal: Sections 187.1, 187.2--§151.002(a)(1), Texas Occupations Code; Section 187.4--none; Section 187.9--§164.206, Texas Occupations Code.