(1)
The board may make an informal disposition of any request for
reinstatement of a medical license following suspension by
stipulation, agreed order, agreed settlement, consent order, or
default.
(2) In
the event the board makes such a disposition of a request for
reinstatement of a medical license following suspension, the
disposition shall be in writing and, if appropriate, the writing shall
be signed by the applicant.
(3) To
facilitate the expeditious disposition of requests for reinstatement
following suspension, the board may provide an applicant with an
opportunity to attend an informal settlement conference.
(4) If
the opportunity for an informal settlement conference is provided to
an applicant, the applicant shall be provided with written notice of
the time, date, and location of the conference and the rules governing
the proceeding by certified mail ‑ return receipt requested, overnight
or express mail, or registered mail, to the last mailing address of
the applicant or the applicant's attorney on file with the board.
(5)
One or more members of the board or a district review committee shall
conduct the informal settlement conference as the board's
representative(s). When a board member and a district review
committee member conduct such a conference, the board member shall
serve as chairman of the conference. In the event that the
representatives consist of two board members or two district review
committee members, the representative who has seniority on the board
or committee shall serve as the chairman of the conference. In the
event a public member of the board or a district review committee
member serves as the only board representative in such a conference, a
board consultant or the board's executive director, if the executive
director is a physician, may serve as a medical advisor to the
representative.
(6)
The informal settlement conference shall allow:
(A)
the board staff to address whether it is in the best interest of the
public and the physician to return to the practice of medicine by
presenting a synopsis of the allegations and the basis of the
suspension of the applicant's medical license, the facts which the
board staff reasonably believes could be proven by competent
evidence at a hearing, and whether the applicant has complied with
the terms and conditions of the Order suspending his license if
applicable;
(B)
the applicant to reply to the board staff's presentation and present
facts the applicant reasonably believes could be proven by competent
evidence at a hearing;
(C)
presentation of evidence by the staff and the applicant 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's representative(s)
are relevant to the proceeding;
(D)
representation of the applicant by counsel;
(E)
presentation of oral or written statements by the applicant or the
applicant's counsel;
(F)
presentation of oral or written statements or testimony by
witnesses; and,
(G)
questioning of witnesses.
(7)
The board's representative(s) shall exclude from the informal
settlement conference all persons except witnesses during their
testimony or presentation of statements, the applicant, the
applicant's attorney or representative, board members, district review
committee members, and board staff.
(8)
During the informal settlement conference, the board's legal counsel
or a representative of the Office of the Attorney General shall be
present to advise the board's representative(s) or the board's
employees.
(9)
Except with the agreement of the applicant, during the deliberations
of an appropriate settlement, the board's representative(s) at an
informal settlement conference shall exclude the board staff which
presented the allegations and facts related to the request for
reinstatement following suspension, the applicant, the applicant's
attorney or representative, any witnesses, and the general public. A
board legal counsel or representative of the Office of the Attorney
General shall be available to assist the representative(s) in their
deliberations.
(10)
After an informal settlement conference has been held, the staff of
the board and the board's representative(s) shall be subject to the ex
parte provisions of the Administrative Procedure Act with regard to
contacts with board members and administrative law judges concerning
the case.
(11)
At the informal settlement conference, the board's representative(s)
will attempt to mediate disputed matters, and the board's
representative(s) may call upon the board staff at any time for
assistance in conducting the informal settlement conference.
(12)
The board's representative(s) shall prohibit or limit access to the
board's investigative file by the applicant, the applicant's attorney
or representative, any witnesses, and the public consistent with the
Medical Practice Act, §164.007.
(13)
Although notes may be made by the participants, mechanical or
electronic recordings shall not be made of settlement discussions,
mediation efforts, and the informal settlement conference.
(14)
The settlement conference shall be informal and shall not follow the
procedures established under Chapter 187 of this title (relating to
Procedure) for contested cases.
(15)
At the conclusion of the informal settlement conference, the board's
representative(s) shall make recommendations for disposition of the
request for reinstatement which may include deferral pending receipt
of additional information, denial of the request, or in accordance
with Board Rule 187.38 of this title (relating to
Modification/Termination of Agreed Orders and Disciplinary Orders), a
modification or termination of the agreed or disciplinary order under
which the suspension was originally granted. The board's
representative(s) may make recommendations to the applicant for
resolution of the issues. Such recommendations may include any
reasonable restrictions authorized by the Act and any other remedial
actions in the public interest. These recommendations may be
subsequently modified by the board's representative(s) or staff based
on new information, a change of circumstance, or to expedite a
resolution in the interest of protecting the public. These
recommendations may be adopted, modified, or rejected by the duly
convened board or through the duly authorized actions of the board's
Disciplinary Process Review Committee.
(16)
The applicant may either accept or reject the settlement
recommendations proposed by the board's representative(s). If the
applicant accepts the recommendations, the applicant shall execute the
settlement agreement in the form of an agreed order or affidavit as
soon thereafter as is practicable. If the applicant rejects the
proposed agreement, the applicant shall be given the option of
requesting a formal hearing. If the applicant requests a formal
hearing, the matter shall be referred to the board's staff for
hearing, as described in Chapter 187, Subchapter C of this title
(relating to Hearing).
(17)
Following acceptance and execution by the applicant of the settlement
agreement, the agreement shall be submitted to the board for approval.
(18)
The following as stated in subparagraphs (A)‑(C) of this paragraph
relate to consideration of an agreed disposition by the board.
(A)
Upon an affirmative majority vote, the board shall enter an order
approving the proposed settlement agreement. The order shall bear
the signature of the president of the board or of the officer
presiding at such meeting and shall be referenced in the minutes of
the board.
(B)
If the board does not approve a proposed settlement agreement, the
applicant shall be so informed and the matter shall be referred to
the board staff for appropriate action to include further
negotiation, further investigation, an additional informal
settlement conference or a hearing.
(C)
To promote the expeditious resolution of any request for
reinstatement, with the approval of the executive director, a member
of the Executive Committee, or the Disciplinary Process Review
Committee, board staff may present a proposed settlement agreement
to the board for consideration and acceptance without conducting an
informal settlement conference. If the board does not approve such
a proposed settlement agreement, the applicant shall be so informed
and the matter shall be referred to the board staff for appropriate
action to include further negotiation, further investigation, an
informal settlement conference or a hearing.