The Texas Medical Board (Board) adopts 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. Sections 187.2, 187.9, 187.13, 187.14, 187.18 - 187.20, 187.24, 187.37, 187.38, 187.43, 187.55 - 187.58, 187.61 and 187.62 are adopted without changes to the proposed text as published in the September 30, 2011, issue of the Texas Register (36 TexReg 6423) and will not be republished. Section 187.16 and §187.83 are adopted with changes to the proposed text as published in the September 30, 2011, issue of the Texas Register. The text of the rules will be republished.

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

The Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on July 27, 2011. The comments were incorporated into the proposed rules.

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

The Board has determined that the amendment revises the due process procedures for cease and desist hearings and enables the Board to take necessary action when an individual is practicing medicine without a license.

COMMENT Number 1:

commented that the proposed amendment to TAC §187.83(e)(2)(E), which would require the individual who is the subject of a hearing on a proposed cease and desist order to pay for the court reporter and transcription of the proceedings if a cease and desist order is issued, is improper. It would unfairly burden the individual's right of access to the courts, in violation of the Texas Constitution, as the preparation of a record is a requirement to obtain judicial review of any Cease and Desist Order issued by the Board. As the party seeking relief, the Texas Medical Board should be responsible for the cost of providing a court reporter and obtaining a written transcript of the proceeding.

The Board has responded by agreeing with the comment and stating that the intent of the rule was to only charge if an individual wanted a copy of the transcript. The Board therefore is deleting language that requires individuals to pay for a court report at a cease and desist hearing. The Board believes that this revision will satisfy the concerns expressed by this comment.

COMMENT Number 2:

commented that the proposed amendment to §187.83(f) is inconsistent with the Texas Medical Practice Act which authorizes the Texas Medical Board to issue a cease and desist order only if "it appears to the board that a person who is not licensed under this subtitle is violating this subtitle. . ." Texas Occupations Code, §165.052(a). The Board does not have authority to issue a cease and desist order because a person "has practiced medicine without a license," but only if there is evidence that the person is currently violating the Medical Practice Act by practicing medicine without a license. A rule adopted by the Board is not reasonable and is not valid exercise of the Board's rulemaking power if it is inconsistent with the statute. The Board may not expand its powers granted by the Texas Legislature as this rule would do.

The Board disagrees with this comment. The Board is charged with the responsibility of taking appropriate action if a person practices medicine without a license. In making a determination regarding the unlicensed practice, the Board must determine if the conduct occurred and if there is a probability that the conduct will occur again in the future. The commenter implies that if an individual ceases the activity at any point before the cease and desist hearing occurs the Board cannot take action; however, the Board does not agree with the commenter's interpretation due to Board's charge to protect the public and need to consider potential future harm. For these reasons, the Board does not believe that any changes should be made to this proposed subsection as published. The Board has adopted the amendments to this subsection as published, without changes.

The amendments are adopted 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.