The Texas Medical Board (Board) proposes amendments to §§187.2, 187.9, 187.13, 187.14, 187.16, 187.18 - 187.20, 187.24, 187.37, 187.38, 187.43, 187.55 - 187.58, 187.61, 187.62, and 187.83, concerning Procedural Rules.

The amendment to §187.2, relating to Definitions, amends the definition of "petition" to include appeals by applicants for licensure and adds definition for "remedial plan."

The amendment to §187.9, relating to Board Actions, adds a process for the Board to issue nondisciplinary remedial plans for licensees.

The amendment to §187.13, relating to Informal Board Proceedings Relating to Licensure Eligibility, adds a process for the Board to issue nondisciplinary remedial plans with applicants for licensure.

The amendment to §187.14, relating to Informal Resolution of Disciplinary Issues Against a Licensee, adds language on remedial plans and specifies that the Quality Assurance Committee may refer investigations to be heard at an informal settlement conference.

The amendment to §187.16, relating to Informal Show Compliance Proceedings (ISCs), provides that for complaints filed with the Board after September 1, 2011, and that are scheduled for ISCs, 45 days before the scheduled ISC, Respondents must be given 45 days notice and copies of the information to be presented.

The amendment to §187.18, relating to Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance, provides that for complaints filed with the Board after September 1, 2011, and that are scheduled for informal settlement conferences (ISCs), Respondents must provide rebuttals 15 days before the scheduled ISCs. Also that upon request by a Respondent, the Board shall record an ISC and the Respondent shall be responsible for the cost. Also, ISC panels may recommend remedial plans in order to resolve complaints.

The amendment to §187.19, relating to Resolution by Agreed Order, includes references to remedial plans.

The amendment to §187.20, relating to Board Action on Agreed Orders, includes references to remedial plans.

The amendment to §187.24, relating to Pleadings, provides that in cases where applicants for licensure appeal ineligibility determinations, the applicants are responsible for filing petitions with the State Office of Administrative Hearings.

The amendment to §187.37, relating to Final Decisions and Orders, provides that the Board may not change findings of fact or conclusions of law as determined by administrative law judges, but the Board may seek judicial review. In addition, all sanction determinations are to be determined by the Board.

The amendment to §187.38, relating to Motions for Rehearing, establishes the process for the Board to seek judicial review of an ALJ determination by filing a motion for rehearing.

The amendment to §187.43, relating to Proceedings for the Modification/Termination of Agreed Orders and Disciplinary Orders, provides that a licensee may not seek modification or termination of a remedial plan and an agreed order entered into by a licensee may not be subsequently converted into a remedial plan.

The amendment to §187.55, relating to Purpose, provides that the Board may temporarily restrict a license through a temporary restriction proceeding.

The amendment to §187.56, relating to Convening a Disciplinary Panel, provides that prior to the scheduling of a temporary suspension or restricting hearing, the executive director shall provide names of board members to the board president for appointment to the disciplinary panel.

The amendment to §187.57, relating to Charge of the Disciplinary Panel, provides that the board may temporarily suspend or restrict the license of a licensee who has been arrested for a sexual assault crime against a child.

The amendment to §187.58, relating to Procedures Before the Disciplinary Panel, amends language to include language on temporary restrictions.

The amendment to §187.61, relating to Ancillary Proceeding, amends language to include provisions for temporary restrictions and establishes that temporary restrictions or suspensions based on arrests for sexual assault crimes against a child are to remain in effect until there is a final disposition of a criminal matter when the licensee in sentenced.

The amendment to §187.62, relating to Continuing Threat Constitutes a Danger to the Public, amends language to include provisions for temporary restrictions.

The amendment to §187.83, relating to Complaints, Investigations, and Proceedings for Cease and Desist Orders, establishes procedures for public cease and desist hearings.

Elsewhere in this issue of the Texas Register, the Board contemporaneously proposes the rule review for Chapter 187.

Nancy Leshikar, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be as follows:

Section 187.2 - to place the burden on applicants for licensure to file petitions at SOAH as the applicants have the burden of proof for establishing eligibility for licensure.

Section 187.9 - to set out the processes for providing remedial plans as set out in HB 680 that was passed during the 82nd Legislative Session.

Section 187.13 - to allow applicants for licensure to be eligible to be granted licensure under a nondisciplinary remedial plan.

Section 187.14 - to have the sections of the rules be consistent and have the rules accurately reflect the Board's current processes.

Sections 187.16, 187.18, 187.37, 187.57 and 187.61 - to have rules consistent with HB 680 that was passed during the 82nd Legislative Session.

Sections 187.19, 187.20 and 187.43 - to have the rules consistent with regard to remedial plans.

Section 187.24 - to have rules consistent with SOAH rules, that place the burden of proof on the filing party, which is consistent with the Medical Practice Act that requires applicants for licensure to demonstrate proof of eligibility.

Section 187.38 - to set out the procedures when the Board disagrees with findings by the State Office of Administrative Hearings that Board believes are contrary to the weight of the evidence and ensuring the public's safety.

Section 187.55 - to have provisions of this rule be consistent with other provisions of the chapter that reference temporary restriction proceedings.

Section 187.56 - to have the rules be consistent with the Board's process for scheduling temporary suspension hearings.

Section 187.58 - to have rules be consistent regarding temporary restrictions.

Section 187.62 - to have consistent language in the rules regarding temporary restrictions.

Section 187.83 - to amend due process procedures for cease and desist hearings and enable the Board to take necessary action when an individual is practicing medicine without a license.

Mrs. Leshikar has also determined that for the first five-year period the sections are in effect there will be no fiscal implication to state or local government as a result of enforcing the sections as proposed. The effect to individuals required to comply with the rules as proposed will be $500 per year if an individual is under a remedial plan. There will be no effect on small or micro businesses.

Comments on the proposals may be submitted to Jennifer Kaufman, P.O. Box 2018, Austin, Texas 78768-2018, or e-mail comments to: rules.development@tmb.state.tx.us. 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 authority for the 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 amendments are also authorized by §153.001 and Chapter 164 and 165, Texas Occupations Code.

No other statutes, articles or codes are affected by this proposal.