The Texas Medical Board adopts 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, without changes to the proposed text as published in the November 4, 2005, issue of the Texas Register (30 TexReg 7141) and will not be republished.

The amendments to §187.1 and §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.

The following comments were received from the Texas Medical Association (TMA):

Comment #1: Section 187.9(d) concerns the issue of refunds as part of a Board Order. TMA supports the amendment as written and believes that the board's rule accurately reflects the intent of the legislature.

Response: Agree

Comment #2: Section 187.16(a) has been amended and subsection (b) has been added. These amendments provide for the provision of information to a licensee prior to an Informal Settlement Conference. The Association supports these changes.

Response: Agree

Comment #3: Subsection 187.18(i) and (n) (as re-lettered) have been amended to comply with changes in that statute made during Sunset Review. A concern of the Association had been that employees of the board may have been able to ex-parte board representative who were making decisions at ISCs. The Board has clarified the duties and functions of the employee who participated in the hearing and the hearings council. It is appropriate that the Board representatives have legal counsel and the rule amendments help to establish a clear demarcation between the two functions.

Response: Agree

Comment #4: Section 187.31. This rule relates to evidence admitted at a State Office of Administrative Hearing. Subsections (b)(11) and (2) are amended to comply with changes to the Medical Practice Act and to not only permit the use of certain peer review information as the basis of an expert opinion but also to protect those individuals who participated in peer review. The Association supports those changes.

Response: Agree

The amendments are adopted 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.