Procedural Rules
Chapter 187

Subchapter A, General Provisions and Definitions

187.1-187.9

(a) Purpose. The purpose of this chapter is to provide a system of procedures for practice before the Texas State Board of Medical Examiners that will promote just and efficient disposition of proceedings and public participation in the decision-making process. The provisions of this chapter shall be given a fair and impartial construction to obtain these objectives.

(b) Scope.

(1) This chapter shall govern the initiation, conduct, and determination of proceedings required or permitted by law, including proceedings referred to SOAH.

(2) This chapter shall not be construed so as to enlarge, diminish, modify, or otherwise alter the jurisdiction, powers or authority of the board, board staff, or the substantive rights of any person.

(3) This chapter shall control the practice and procedure of all board proceedings to include SOAH proceedings unless preempted by SOAH rules or the APA.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
 

(1) Act - Tex. Occ. Code Ann. Title 3 Subtitle B, for physicians; Tex. Occ. Code Ann. Chapter 204 for physician assistants; Tex. Occ. Code Ann. Chapter 205 for acupuncturists; and Tex. Occ. Code Ann. Chapter 206 for surgical assistants.
 

(2) Address of record - The mailing address of each licensee or applicant as provided to the agency pursuant to the Act.
 

(3) Administrative law judge (ALJ) - An individual appointed to preside over administrative hearings pursuant to the APA.
 

(4) Agency - The divisions, departments, and employees of the Texas State Board of Medical Examiners, the Texas State Board of Physician Assistant Examiners, and the Texas State Board of Acupuncture Examiners.
 

(5) APA- The Administrative Procedure Act, Texas Government Code, Chapter 2001 as amended.
 

(6) Applicant - A person seeking a license from the board.
 

(7) Attorney of record - A person licensed to practice law in Texas who has provided staff with written notice of representation.
 

(8) Authorized representative - An attorney of record or any other person who has been designated in writing by a party to represent the party at a board proceeding.
 

(9) Board - The Texas State Board of Medical Examiners for physicians and surgical assistants, the Texas State Board of Acupuncture Examiners for acupuncturists, and the Texas State Board of Physician Assistant Examiners for physician assistants.
 

(10) Board member -- One of the members of the board appointed pursuant to the Act.
 

(11) Board proceeding - Any proceeding before the board or at which the board is a party to an action, including a hearing before SOAH.
 

(12) Board representative - a board member or district review committee member who sits on a panel at an informal proceeding.
 

(13) Complaint - Pleading filed at SOAH by the board alleging a violation of the Act.
 

(14) Contested case A proceeding, including but not restricted to licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for an administrative hearing to be held at SOAH.
 

(15) Default judgment - The issuance of a proposal for decision or board order in which the factual allegations against a party are deemed admitted as true upon the party's failure to appear at a properly noticed SOAH hearing or ISC.
 

(16) Documents Applications, petitions, complaints, motions, protests, replies, exceptions, answers, notices, or other written instruments filed with the board in a board proceeding.
 

(17) Executive director - The executive director of the agency, the authorized designee of the executive director, or the secretary of the board if and whenever the executive director and authorized designee are unavailable.
 

(18) Formal board proceeding - any proceeding requiring action by the board, including a temporary suspension hearing.
 

(19) Group practice - Any business entity, including a partnership, professional association, or corporation, organized under Texas law and established for the purpose of practicing medicine in which two or more physicians licensed in Texas are members of the practice.
 

(20) Informal board proceeding - Any proceeding involving matters before the board prior to the filing of a pleading at SOAH, to include, but not limited to show compliance proceedings, eligibility determinations, and informal resolution conferences.
 

(21) Informal show compliance proceeding - A board proceeding that provides a licensee the opportunity to demonstrate compliance with all requirements of the Act and board rules either in writing as set out in §187.17 of this title (relating to Informal Show Compliance Proceeding Based on Written Information) or through a personal appearance with one or more representatives of the board as set out in §187.18 of this title (relating to Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance ("ISC")) and an opportunity to enter into an informal settlement.
 

(22) ISC - Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance.
 

(23) License - Includes the whole or part of any board permit, certificate, approval, registration or similar form of permission authorized by law.
 

(24) Licensee - Any person to whom the agency has issued a license, permit, certificate, approval, registration or similar form of permission authorized by law.
 

(25) Licensing - The agency process relating to the granting, denial, renewal, revocation, cancellation, suspension, limitation, reinstatement or reissuance of a license.
 

(26) National Practitioner Data Bank (NPDB) reportable action - In accordance with the Health Care Quality Improvement Act, 42 U.S.C. §11132, a public board action subject to reporting to the NPDB, includes a revocation, suspension, restriction or limitation of a physician's license or public reprimand. An administrative penalty or a requirement that a physician obtain additional education or training are not considered reportable actions for the purpose of reporting to the NPDB, however, all disciplinary actions are public as set out in the Act.
 

(27) Party - The board and each person named or admitted as a party in a SOAH hearing or contested case before the board.
 

(28) Person - Any individual, partnership, corporation, association, governmental subdivision, or public or private organization.
 

(29) Petition - Pleading filed at SOAH by the board alleging the reasons for the denial of a license.
 

(30) Pleading - A written document submitted by the board, which requests procedural or substantive relief, makes claims, alleges facts, makes legal arguments, or otherwise addresses matters involved in a board proceeding.
 

(31) Presiding officer - The president of the board or the duly qualified successor of the president or other person presiding over a board proceeding.
 

(32) Probationer - A licensee who is under a board order.
 

(33) Probationer show compliance proceeding - A board proceeding that provides a probationer the opportunity to demonstrate compliance with the Act, board rules, and board order prior to the board finding that a probationer is in noncompliance with the probationer's order.
 

(34) Register - The Texas Register.
 

(35) Respondent - In a contested case, the licensee or applicant who either formally contests or defaults on an action rendered in a board proceeding.
 

(36) Rule Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedures or practice requirements of this board. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. This definition includes substantive regulations.
 

(37) Secretary - The secretary treasurer of the board.
 

(38) SOAH - The State Office of Administrative Hearings.
 

(39) SOAH hearing - A public adjudication proceeding at SOAH.
 

(40) SOAH rules - 1 Texas Administrative Code §155.1 et. seq.
 

(41) Texas Public Information Act - Texas Government Code, Chapter 552.
 

(42) Witness - Any person offering testimony or evidence at a board proceeding who is not board staff, the respondent, or an authorized representative of the respondent.
 

(a) Counting days. Unless otherwise required by statute, in computing time periods prescribed by this chapter or by a SOAH order, the period shall begin to run on the day after the act, event or default in question. The day of the act, event or default on which the designated period time begins to run is not included. The period shall conclude on the last day of the designated period, unless that day is a day the agency is not open for business, in which case the designated period runs until the end of the next day on which the agency is open for business. When these rules specify a deadline or a set number of days for filing documents or taking other actions, the computation of time shall be calendar days rather than business days, unless otherwise provided in this chapter or pursuant to a SOAH or board order. However, if the period to act is five days or less, the intervening Saturdays, Sundays and legal holidays are not counted.

(b) Dispute. Disputes regarding computation of time for periods not specified by this chapter or by a board or SOAH order will be resolved by reference to applicable law and upon consideration of agency policy documented in accordance with the Act and board rules.

(c) Extensions. Unless otherwise provided by statute, the time for filing any document may be extended by agreement of the parties, order of the executive director or the ALJ if SOAH has acquired jurisdiction, upon written request filed prior to the expiration of the applicable time period. This written request must show good cause for an extension of time and state that the need is not caused by the neglect, indifference or lack of diligence of the movant.

No stipulation or agreement between the parties, with regard to any matter involved in any board proceeding shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, or unless it shall have been dictated into the record by them during the course of a SOAH hearing or a deposition, or incorporated in an order bearing their written approval. This section does not limit a party's ability to waive, modify or stipulate any right or privilege afforded by these sections, unless precluded by law.

(a) An individual may appear on his or her own behalf or by an authorized representative. This right may be waived.

(b) Any person appearing as the authorized representative of an individual must produce a written statement executed by the individual they are representing which grants the representative the authority to appear on behalf of the individual. The original or a notarized copy of the authorization must be provided to the board at least three days prior to the appearance of the authorized representative in a proceeding or SOAH hearing unless waived by the board.

(c) A corporation, partnership, or association may appear and be represented by any authorized representative.

Each person, witness, or other representative shall behave in a dignified, courteous, and respectful manner with the board, the executive director, board staff, and all other parties at board proceedings. Disorderly or disruptive conduct will not be tolerated. Attorneys and other representatives shall observe and practice the standards of ethical behavior prescribed for attorneys by the State Bar of Texas.

(a) Authority. Pursuant to the Act, §153.007, the board has the authority to issue subpoenas to compel the attendance of witnesses and to issue subpoenas duces tecum to compel the production of books, records, or documents on the board's own motion.

(b) Request. Subsequent to the filing of a formal complaint, any party may request in writing that the executive director, as defined in §187.2 of this title (relating to Definitions), issue a subpoena or subpoena duces tecum in accordance with §2001.089 of the APA and §153.007 of the Act, upon a showing of good cause.

(1) The party requesting the subpoena shall be responsible for the payment of any expense incurred in serving the subpoena, as well as reasonable and necessary expenses incurred by the witness who appears in response to the subpoena.

(2) If the subpoena is for the attendance of a witness, the written request shall contain the name, address, and title, if any, of the witness and the date and location at which the attendance of the witness is sought.

(3) If the subpoena is for the production of books, records, writings, or other tangible items, the written request shall contain a description of the item sought; the name, address, and title, if any, of the person or entity who has custody or control over the items and the date; and the location at which the items are sought to be produced.

(4) The party requesting a subpoena duces tecum shall describe and recite with great clarity, specificity, and particularity the books, records, documents to be produced.

(c) Service and expenses.

(1) A subpoena issued at the request of the board's staff may be served either by a board investigator or by certified mail in accordance with the Act §153.007. The board shall pay reasonable charges for photocopies produced in response to a subpoena requested by the board's staff, but such charges may not exceed those billed by the board for producing copies of its own records.

(2) A subpoena issued at the request of any party other than the board shall be addressed to a sheriff or constable for service in accordance with the APA §2001.089.

(d) Fees and travel. A witness called at the request of the board shall be paid a compensation fee as set by agency policy and reimbursed for travel in like manner as board employees. An expert witness called at the request of the board shall be paid a compensation fee as set by agency policy and reimbursed for travel in like manner as board members.

(e) Additional reasons for granting a subpoena. Notwithstanding any other provisions of this section, the executive director, as defined in §187.2 of this title (relating to Definitions), may issue a subpoena if, in the opinion of the executive director, such a subpoena is necessary to preserve evidence and testimony to investigate any potential violation or lack of compliance with the Act, the rules and regulations or orders of the board.

(a) Pursuant to the Act, §164.001, and in accordance with Chapter 190 of this title (relating to Disciplinary Guidelines), the board, upon finding that an applicant or licensee has committed a prohibited act under the Act or board rules, shall enter an order imposing one or more of the following actions:
 

(1) deny the person's license application or other authorization to practice medicine;
 

(2) administer a public reprimand;
 

(3) revoke, suspend, limit or restrict a person's license or other authorization to practice medicine;
 

(4) require the person to submit to care, counseling or treatment by a health care practitioner designated by the board;
 

(5) require the person to participate in an evaluation, educational or counseling program;
 

(6) require the person to practice under the direction of a physician for a specified period of time;
 

(7) require the person to perform public service;
 

(8) require the person to participate in continuing education programs;
 

(9) require the person to be monitored for a specific period of time with or without restrictions on the person's practice of medicine; or
 

(10) assess an administrative penalty against the person.
 

(b) The board may stay enforcement of any order and place the person on probation. The board shall retain the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of the probation or to impose any other disciplinary action as provided in subsection (a) of this section in addition to or instead of enforcing the original order.
 

(c) A private nondisciplinary rehabilitation order may impose one or more of the above board actions or such other actions as agreed to by the board and person subject to the order.
 

(d) The time period of an order shall be extended for any period of time in which a person subject to an order subsequently resides or practices outside the State of Texas or for any period during which the person's license is subsequently cancelled for nonpayment of licensure fees.
 

Effective November 30, 2003.
 

Subchapter B, Informal Board Proceedings

187.10-187.21

The purpose of informal board proceedings is to provide notice to an applicant or licensee of alleged violations of board rules or the Act, or the basis of denial of or ineligibility for licensure, an opportunity for an applicant or licensee to show compliance, and an opportunity for informal disposition of the matter.
 

Upon an initial determination by board staff that an applicant is ineligible for licensure or that a licensee has allegedly violated the Act, board rules, or order of the board, the matter and the ongoing investigation shall either be retained by the licensure division or be referred to the agency's litigation section for the scheduling of an informal proceeding.

The applicant or licensee shall be given notice of the opportunity to attend and participate at an informal board proceeding by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, or registered mail to the address of record. The notice shall include the basis for denial or ineligibility or the alleged violations and a description of the process for informal board proceedings. Within the written notice, the applicant or licensee shall be adequately informed that failure to respond to the allegations either in writing or by personal appearance may result in default judgment.

(a) Recommendations by the Executive Director.
 

(1) The executive director shall review applications for licensure. If an applicant is determined to be ineligible for a license by the executive director pursuant to §§155.001-155.152 of the Act, Chapter 163 of this title (relating to Licensure), or Chapter 171 of this title (relating to Postgraduate Training Permits), the applicant may request review of that determination by a committee of the board. The applicant must request the review not later than the 20th day after the date the applicant receives notice of the determination.
 

(2) To promote the expeditious resolution of any licensure matter, the executive director with the approval of the board, may recommend that an applicant be eligible for a license only under certain terms and conditions and present a proposed agreed order to the applicant.
 

(A) If the proposed agreed order is acceptable to the applicant, the applicant shall sign the order and the order shall be presented to the board for consideration and acceptance without conducting an informal board proceeding relating to licensure eligibility.
 

(B) If the proposed agreed order is not acceptable to the applicant, the applicant may request review of the executive director's recommendation by a committee of the board. The applicant must request review not later than the 20th day after the date the applicant receives notice of the executive director's recommendation.
 

(b) Determination by a Committee of the Board. Upon review of an application for licensure, a committee of the board may determine that the applicant is ineligible for licensure or is eligible for licensure with or without restrictions.
 

(1) Licensure with Restrictions.
 

(A) If the committee determines that the applicant should be granted a license with restrictions based on the applicant's commission of a prohibited act or failure to demonstrate compliance with provisions under the Act or board rules, the committee, as the board's representatives, shall propose an agreed order. The terms and conditions of the proposed agreed order shall be submitted to the board for approval.
 

(B) Upon an affirmative majority vote of members present, the board may approve the agreed order with or without modifications, and direct staff to present the order to the applicant.
 

(i) If the applicant agrees to the terms of the proposed agreed order, the effective date of the order shall be upon the signing of the order by the applicant and passage of the medical jurisprudence examination, if applicable.
 

(ii) If the applicant does not agree to the terms of the proposed agreed order, the applicant is considered ineligible for licensure.
 

(C) If the board does not approve the proposed agreed order and by majority vote determines the applicant ineligible for licensure, the applicant shall be so informed and the matter shall be referred to board staff for appropriate action that may include further investigation or an additional appearance by the applicant before a committee of the board. The board must specify their rationale for the rejection of the proposed agreed order that shall be referenced in the minutes of the board.
 

(2) Ineligibility Determination.
 

(A) If a committee of the board determines that an applicant is ineligible for licensure, the applicant shall be notified of the committee's determination and given the option of appealing the determination to SOAH or withdrawing his or her application. An applicant has 20 days from the date the applicant receives notice of the committee's determination to make the request.
 

(B) If the applicant timely requests a SOAH hearing, the matter shall be referred to board staff.
 

(C) If the applicant does not timely request a SOAH hearing or withdrawal of application, the committee's determination shall be submitted to the full board and shall become administratively final at the next scheduled board meeting.
 

(D) If an applicant is determined ineligible for licensure, the applicant may request a rehearing of his/her application before a committee of the board. The request must be made within 20 days receipt of notice of the committee's initial determination of ineligibility. It is at the discretion of the committee whether to grant a rehearing.
 

Pursuant to §§164.003 -.004 of the Act and §§2001.054-.056 of the APA, the following rules shall apply to informal resolution:

(1) Any matter within the board’s jurisdiction may be resolved informally by agreed order, administrative penalty, dismissal, or default.

(2) Prior to the imposition of any disciplinary action against a licensee, the licensee shall be given the opportunity to show compliance with all the requirements of the law for the retention of an unrestricted license before one or more board representatives.

(3) If a determination is made by the board representatives that there has been no violation, the board representatives may recommend that the complaint or allegations be dismissed.

(4) If a determination is made by the board representatives that a licensee has violated the Act, board rules, or board order, the board representatives may make recommendations for resolution of the issues to be reduced to writing and processed in accordance with §187.19 of this title (relating to Resolution by Agreed Order).

(5) An opportunity for the licensee to show compliance shall not be required prior to a temporary suspension under §164.059 of the Act, or in accordance with the terms of an agreement between the board and a licensee.

(6) Any modification made by the board to any agreed order must be approved by the licensee.

Failure of a licensee to comply within the prescribed time with all requests to produce records, documents, or other information requested by board staff in connection with an informal board proceeding shall constitute unprofessional and dishonorable conduct.

(a) Prior to the institution of any disciplinary action against a licensee, the licensee shall be provided with notice of the allegations and the facts that the board staff reasonably believes could be proven by competent evidence at a hearing, and may be asked to respond in writing to questions from the board staff concerning the matter. If the licensee is asked to respond to written questions, the licensee shall respond within 14 days after the notice is mailed. The licensee's response may include any additional information the licensee wants the board representatives to consider.
 

(b) All information provided by the board staff and the licensee shall be provided to the board representatives for review prior to the board representatives making a determination of whether the licensee has violated the Act, board rules, or board order.
 

(c) Upon receiving the notice of allegations, the licensee must submit written notification to the board within 14 days of the mailing, indicating whether the licensee has chosen to waive an opportunity to show compliance, have a determination of compliance be made based upon the written information submitted to the board representatives as set out in §187.17 of this title (relating to Informal Show Compliance Proceeding Based on Written Information), or attend an ISC as set out in §187.18 of this title (relating to Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance ("ISC")). The board shall assume that if a licensee fails to provide any written response that the licensee has elected to personally appear at an ISC.
 

(d) Notwithstanding any other provision of this section, the board representatives may request that a licensee personally appear at an ISC.
 

(e) All informal show compliance proceedings shall be scheduled not later than the 180th day after the date the complaint is filed with the board, unless good cause is shown by the board for scheduling the informal meeting after that date.
 

(a) A licensee may request in writing that a determination of show compliance be made based on the written information provided by the licensee and board staff for review by the board representatives.

(b) One or more board representatives shall review the written information and deliberate in person or by telephone in order to make recommendations for the disposition of the complaint and/or allegations.

(c) Board staff and counsel of the board shall be available for assistance to the board representatives.

(d) If a determination is made by the board representatives that there has been no violation, the board representatives may recommend that the complaint or allegations be dismissed.

(e) If a determination is made by the board representatives that the licensee has violated the Act, board rules, or board order, the board representatives may propose resolution of the issues to the licensee that shall be reduced to writing and processed in accordance with §187.19 of this title (relating to Resolution by Agreed Order).

(a) Notice of the time, date and place of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the complainants and the address of record of the licensee or the licensee's authorized representative to be sent by the Board at least thirty days prior to the date of the ISC. The notice shall also provide the licensee with the rules governing the proceeding; the deadline for submitting any additional material for presentation to the board representatives; and a brief written statement of the nature of the allegations to be addressed at the ISC. If the licensee has previously been the subject of disciplinary action by the board, the licensee shall be sent proscribed notice at least ten days prior to the date of the ISC.
 

(b) Unless a timely written request from the licensee for an informal show compliance proceeding based on written information is received, the licensee shall be scheduled to appear in person for an ISC with one or more board representatives.
 

(c) Requests to reschedule the ISC may be granted only if the licensee is able to show that extraordinary circumstances exist such as illness, death or natural disaster, which suggest the need to reschedule the ISC. The licensee must submit a written request within five days of receipt of the notice that includes the reasons for the requested continuance. Counsel to the board shall make the determination as to whether to grant a request to reschedule.
 

(d) Prior to the ISC, the board representatives shall be provided with the information sent to the licensee by the board staff and all information timely received in response from the licensee. If no information has been received from the licensee that shall be reported to the board representatives.
 

(e) The ISC shall allow:
 

(1) the board staff to present a synopsis of the allegations and the facts that the board staff reasonably believes could be proven by competent evidence at a hearing;
 

(2) the licensee to reply to the board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing;
 

(3) presentation of evidence by the board staff and the licensee 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 representatives are relevant to the proceeding;
 

(4) representation of the licensee by an authorized representative;
 

(5) presentation of oral or written statements by the licensee or authorized representative;
 

(6) presentation of oral or written statements or testimony by witnesses;
 

(7) questioning of the witnesses in a manner prescribed by the panel;
 

(8) questioning of the licensee;
 

(9) rebuttal by board staff; and
 

(10) upon request by board representatives, the board staff may propose appropriate disciplinary action and the licensee or authorized representative may respond.
 

(f) The board representatives, board staff, the licensee, and the licensee's authorized representative shall be present during the presentation of statements and testimony during the ISC.
 

(g) Notwithstanding subsection (f) of this section, the board representatives may allow a witness to testify outside the physical presence of the licensee to protect the person from harassment and/or undue embarrassment, for personal safety concerns, or for any other demonstrated and legitimate need. If such testimony is allowed, arrangements will be made to allow the licensee to listen to the testimony contemporaneously as it is given.
 

(h) All evidence that a licensee wishes the board representatives to consider at the ISC must be submitted to the board at least seven days before the ISC. The board representatives may refuse to consider any evidence not submitted in a timely manner. If the board representatives allow the licensee to submit late evidence, the representatives may reschedule and/or assess an administrative penalty for the late submission.
 

(i) A board attorney shall be designated as Counsel to the panel and shall be present during the hearing and deliberations by the panel and shall advise the panel on all legal issues that arise during the hearing including objections to evidence and other evidentiary matters. The Counsel to the Panel shall be permitted to ask questions of witnesses, the board staff, the attorney for the licensee and other participants in the hearing.
 

(j) At the ISC, the board representatives shall attempt to resolve disputed matters and the representatives may call upon the board staff at any time for assistance in conducting the ISC.
 

(k) The board representatives shall prohibit or limit access to the board's investigative file by the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the public consistent with Act, §164.007.
 

(l) Although the participants may make notes, mechanical or electronic recordings shall not be made of the ISC, settlement discussions, or mediation efforts.
 

(m) The ISC shall be informal and shall not follow the procedures established under this title for formal board proceedings.
 

(n) At the conclusion of the presentations, the board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations. During the deliberations by the board representatives, the board representatives shall exclude, except with agreement of the licensee, the board staff who presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's authorized representative, the complainant(s), witnesses, and the general public. Counsel of the board shall be available for assistance during deliberations.
 

(o) The board representatives may make recommendations to dismiss the complaint or allegations.
 

(p) Upon a determination by the board representatives that the licensee has violated the Act or board rules, the board representatives may propose resolution of the issues to the licensee to be reduced to writing and processed in accordance with §187.19 of this title (relating to Resolution by Agreed Order).

 

(a) If the board representatives determine that the licensee has violated the Act, board rules, or board order, the board representatives may recommend board action and terms and conditions for informal resolution.

(b) The recommendation of the board representatives shall be reduced to writing in an agreed order prepared by board staff and presented to the licensee and the authorized representative.

(c) The licensee may accept the proposed settlement within the time period prescribed. If the licensee rejects or fails to timely accept the proposed agreement, board staff may proceed with the filing of a complaint at SOAH.

(d) Additional negotiations may be held between board staff and the licensee or the authorized representative. In consultation with the board representatives, as available, the recommendations of the board representatives may be subsequently modified based on new information, a change of circumstances, or to expedite a resolution in the interest of protecting the public.

(e) At the discretion of board staff and the chief of litigation, a licensee may be invited to participate in an informal resolution conference for the purpose of allowing further negotiation. One or both of the board representatives from the informal show compliance proceeding, or a board member if no such board representative is available, may participate in the conference either in person or by telephone.

(f) The board representative(s) shall be consulted and must concur with any subsequent substantive modifications before any recommendations are sent to the full board for approval.

(g) The recommendations may be adopted, modified, or rejected by board.

(h) Board staff may communicate directly with the board representative(s) after the ISC for the purpose of discussing settlement of the case.

(a) Following the acceptance and execution by the licensee or applicant of the settlement agreement, the agreement shall be submitted to the board for approval.

(b) The following relate to the consideration of an agreed disposition by the board:

(1) Upon an affirmative majority vote of members present, 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.

(2) If the board does not approve a proposed settlement agreement, the licensee or applicant shall be so informed and the matter shall be referred to board staff for appropriate action that may include dismissal, closure, further negotiation, further investigation, an additional informal resolution conference or a SOAH hearing. The board must specify their rationale for the rejection of the proposed settlement agreement that shall be referenced in the minutes of the board.

(c) To promote the expeditious resolution of any complaint or matter relating to the Act or of any contested case, with the approval of the executive director or a member of the Executive Committee or the Disciplinary Process Review Committee, board staff may present a proposed settlement agreement for licensees to the board for consideration and acceptance without conducting an informal show compliance proceeding.

(a) One or more members of the board or the district review committee shall conduct an ISC as the board’s representatives. When a board member and district review committee member conduct an informal show compliance proceeding, the board member shall serve as chair of the proceeding. 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 chair of the proceeding. In the event a public member of the board or of the district review committee serves as the only board representative in such a proceeding, a board consultant or the board’s executive director, if the executive director is a physician, may, with the approval of the licensee, serve as a medical advisor to the representative.

(b) To the extent possible, board members and district review committee members are required to serve as representatives at informal show compliance proceedings an equal number of times during a calendar year.

(c) In the event a board member or district review committee member has a complaint regarding the frequency or infrequency of service as a representative at informal show compliance proceedings, the complaint may be routed in writing to the director of enforcement for the board who shall then bring the complaint to the attention of the president of the board for resolution.

Effective November 30, 2003.

Chapter 187

Subchapter C, Formal Proceedings at SOAH

187.22-187.34

The purpose of this subchapter is to provide procedure for public adjudicative hearings at SOAH.

(a) SOAH hearings of contested cases shall be conducted in accordance with the APA by an ALJ assigned by SOAH. Jurisdiction over the case is acquired by SOAH when board staff files a Request to Docket Case form accompanied by legible copies of all pertinent documents, including but not limited to the complaint, petition or other document describing the board action giving rise to the contested case.

(b) The ALJ has the authority under SOAH rules, Chapter 155, to issue orders, to regulate the conduct of the proceeding, rule on motions, establish deadlines, clarify the scope of the proceeding, schedule and conduct prehearing and posthearing conferences for any purpose related to any matter in the case, set out additional requirements for participation in the case, and take any other steps conducive to a fair and efficient process in the contested case, including referral of the case to a mediated settlement conference or other appropriate alternative dispute resolution procedure as provided by Chapter 2008 of the Government Code.

(c) Any person may file a motion to be admitted as a party upon showing of a justiciable interest.

(d) All documents are to be filed at SOAH only after it acquires jurisdiction. Copies of all documents filed at SOAH shall be contemporaneously sent to board staff.

(e) Because of the often voluminous nature of the records properly received into evidence by the ALJ, the party introducing such documentary evidence should paginate each exhibit and/or flag pertinent pages in each exhibit in order to expedite the hearing and the decision-making process.

(f) Board staff may file an interlocutory or interim appeal to the board of an ALJ's ruling excluding evidence offered by board staff, or of any procedural ruling that staff believes is substantially prejudicial to the board. The board’s determination on these matters shall be controlling.

(g) Board staff may certify to the board any question concerning the following:

(1) procedural or evidentiary issues;

(2) the imposition of any sanction;

(3) evidentiary or procedural ruling by an ALJ that would be substantially prejudicial to the board;

(4) policy issues including, but not limited to:

(A) the board’s interpretation of its rules and applicable statutes;

(B) which rules or statutes are applicable to a proceeding; and

(C) whether board policy should be established or clarified as to a substantive or procedural issue of significance of the proceeding;

(5) any other matter which is committed to the discretion or judgment of the board.

(h) Final argument by the parties, whether written or oral, shall proceed by allowing the party with the burden of proof to open and conclude. In disciplinary matters, board staff will make argument, the respondent/licensee will be permitted to make a reply argument, and board staff will be permitted to make rebuttal argument in that order. In licensure matters, the respondent/applicant shall make argument, the board staff shall be permitted to make reply argument, and the respondent/applicant shall be permitted rebuttal argument, in that order.

(i) Within the time line set out in SOAH rules, after the conclusion of the hearing, the ALJ shall prepare and serve on the parties a proposal for decision that includes the ALJ's findings of fact and conclusions of law.

(j) After receiving the ALJ’s findings of fact and conclusions of law, the board shall rule on the merits of the charges and enter an order.

(a) In disciplinary matters, actions by the board as petitioner against a licensee, the board's pleadings shall be styled "SOAH Complaint" or "Formal Complaint". Except in cases of temporary suspension, a complaint shall be filed only after notice of the facts or conduct alleged to warrant the intended action has been sent to the licensee's address of record and the licensee has an opportunity to show compliance with the law for the retention of a license as provided in §2001.054 of the APA, and §164.004(a) of the Act.
 

(b) In nondisciplinary matters, actions by the board as petitioner to enforce and regulate matters regarding licensure eligibility, the board's pleadings shall be styled "Petition of the Board of Medical Examiners".
 

(a) Notice. Before revoking or suspending any license, denying an application for a license, or reprimanding any licensee, the board will afford all parties an opportunity for an adjudicative hearing after reasonable notice of not less than ten days, except as otherwise provided by board rule or the Act.

(b) Content.

(1) In accordance with §2001.052 of the APA, notice of adjudicative hearing shall include:

(A) a statement of time, place, and nature of the hearing;

(B) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(C) a reference to the particular sections of the statutes and rules involved;

(D) a short and plain statement of the matters asserted; and

(E) notice that failure to appear may result in a default judgment as specified in §187.27 of this title (relating to Default Judgments).

(2) A copy of the original pleading filed with the board may be substituted for subsection (b)(1), subparagraphs (B)-(E) of this section if it contains all required information.

(c) Service. The notice of adjudicative hearing shall be served as specified in §187.26 of this title (relating to Service in SOAH Proceedings).

(a) Personal service. Service of process shall be made by hand delivery or by mailing notice of hearing by regular, registered or certified mail, or courier service to the person entitled to notice at the address of record by such an individual or otherwise in accordance with the APA and its subsequent amendments. A certificate of service indicating service in the manner provided for in this subsection shall be prima facie evidence of such service.

(b) Service by regular mail. Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.

(c) Service by publication. If service of notice as prescribed by subsection (a) of this section is impossible or cannot be accomplished, then notice may be made through publication of a notice of hearing once a week for two successive weeks in a newspaper published in the county of the last known place of practice of the person entitled to notice if the county is known. If the person is not currently practicing in Texas as evidenced by information in the agency files, or if the last county of practice is unknown, publication shall be in a newspaper in Travis County. When publication of notice is used, the date of hearing may not be less than ten days after the date of the last required publication of notice. Proof of publication may be accomplished by affidavit of a representative or record custodian of the publisher indicating the required publication or by introduction and admission into evidence of copies of the required notices published for purposes of service.

(d) Service of documents in SOAH cases. Service of documents in contested cases pending before SOAH shall be governed by the rules of SOAH.

(a) Written Answers in SOAH Proceedings.

(1) The complaint or petition and notice of hearing shall include the following language in at least 10-point bold type: “If you do not file a written answer to this notice with the State Office of Administrative Hearings within 20 days of the date notice of service was mailed, a default judgment may be entered against you, which may include the denial of licensure or any or all of the requested sanctions including the revocation of your license. If you file a written answer, but then fail to attend the hearing, a default judgment may be entered against you, which may include the denial of licensure or any or all of the requested sanctions including the revocation of your license. A copy of any response you file with the State Office of Administrative Hearings shall also be provided to the hearings coordinator of the Texas State Board of Medical Examiners.”

(2) The written answer shall specifically admit or deny each factual and legal allegation made against the respondent. Any unreasonable denial of any allegation shall constitute unprofessional and dishonorable conduct and shall be considered as an aggravating factor should a violation of the Act be found.

(b) Default Judgments.

(1) When a contested case has been filed at SOAH by board staff and a complaint or petition has been served on the respondent, the respondent shall file a written answer as required by §187.27 (relating to Written Answers in SOAH Proceedings).

(2) The complaint or petition and notice of hearing shall include the following language in at least 10-point bold type: “If you do not file a written answer to this notice with the State Office of Administrative Hearings within 20 days of the date notice of service was mailed, a default judgment may be entered against you, which may include the denial of licensure or any or all of the requested sanctions including the revocation of your license. If you file a written answer, but then fail to attend the hearing, the factual allegations in the notice will be deemed admitted as true, and the relief sought in the notice of hearing may be granted as default and a default judgment may be entered against you, which may include the denial of licensure or any or all of the requested sanctions including the revocation of your license. A copy of any response you file with the State Office of Administrative Hearings shall also be provided to the hearings coordinator of the Texas State Board of Medical Examiners.”

(3) In the event the respondent fails to file a responsive pleading in the required time period, board staff shall be entitled to a default judgment. A hearing on any motion for default judgment shall be set as soon as practicable.

(4) In the event that the respondent files an answer or makes an appearance more than 20 days after service of notice of hearing and a default judgment has not previously been granted, board staff shall be granted a continuance, if requested, in order to prepare for a contested case.

(5) If a default judgment has been granted, the respondent may file a motion to vacate the default judgment rendered by the ALJ if filed within ten days of service of notice of the default judgment.

(A) The motion to vacate the default judgment shall be granted if movant proves by a preponderance of the evidence that the failure to attend the hearing was not intentional or the result of conscious indifference, but due to accident or mistake.

(B) If the motion to vacate the default judgment is granted, it shall be the responsibility of the parties to either settle the matter informally or to request a rehearing on the merits. Whenever possible, the rehearing of the case shall occur with the ALJ that heard the default matter.

Parties to SOAH proceedings shall have reasonable opportunity and methods of discovery as described in the APA, §164.005 of the Act, board rules, SOAH’s rules and where specifically provided, the Texas Rules of Civil Procedure. Matters subject to discovery are limited to those that are relevant and material to, or reasonably calculated to lead to the discovery of, issues within the board’s authority as set out in the Act.

(1) Preliminary Discovery. Not later than 20 days after receiving a written request from an opposing party, the responding party shall provide to the requesting party the following:

(A) a preliminary list of the names and last known addresses and phone numbers of potential witnesses which the responding party reasonably anticipates may testify in its case‑in‑chief;

(B) a list or copy of all documents, records, photographs, moving pictures, films, videotapes, audio recordings, and other such material in the possession of the responding party which the responding party intends to offer in its case‑in‑chief, and a reasonable opportunity to inspect and copy such items;

(C) a list identifying all tangible items in the possession of the responding party which the responding party intends to offer in its case‑in‑chief, and a reasonable opportunity to inspect such items;

(D) a list of the names and last known addresses and phone numbers of any experts the responding party anticipates calling to testify in its case‑in‑chief; and

(E) upon written request, a list identifying all of the following documents and tangible items pertaining to the responding party's experts, or copies of such documents and tangible items, shall be provided to the requesting party before the initial deposition of such an expert, or no later than five days prior to the hearing on the case if no deposition of the expert has been taken. The following must be identified:

(i) documents and tangible items which have been provided to any expert who is expected to testify in the case;

(ii) documents and tangible items which have been made or prepared by any expert used for consultation if such documents and tangible items form the basis, either in whole or in part, of the opinion of an expert who is expected to testify in the case; and

(iii) a report from each expert who is anticipated to testify in the case which generally synopsizes the expected testimony of the expert.

(2) Additional Discovery.

(A) Request for Admissions and Genuineness of Documents as permitted by the rules of SOAH. “Genuineness” means that the documents are truly what they purport to be and are not false, fictitious, forged, spurious or counterfeit.

(B)Interrogatories as permitted by the rules of SOAH, which must be sworn to in accordance with Texas Rules of Civil Procedure 197.2.

(C) Requests for Disclosure as provided for in the Texas Rules of Civil Procedure, except the time period allowed for answering the Requests for Disclosure shall be 20 days rather than 30 days.

(D) Requests for Production as permitted by the rules of SOAH.

(E) Deposition on Written Questions as provided for in the Texas Rules of Civil Procedure.

(F) Other forms of discovery as provided for in the APA and by the rules of SOAH.

(3) Inspection and Copying. Documents and tangible items that are identified in a discovery response but not provided, shall be made available for inspection and copying at a reasonable time and place upon the written request of an opposing party.

(4) Depositions.

(A) The taking and use of depositions shall be governed by APA or by an agreement between the parties either on the record or in a writing signed by the parties or their representatives. Except by an agreement between the parties either on the record or in a writing signed by the parties or their representatives, depositions shall be conducted and completed no later than 19 days prior to the scheduled hearing date. Failure of a properly noticed witness who is a party to the case to attend a deposition for the purpose of taking the testimony of that party witness, or the failure of such a witness to attend such a deposition as agreed to by the parties on the record or in a writing signed by the parties or their representatives, may result in the imposition of the sanctions and remedies set forth in paragraph (6) of this section.

(B) In the event that, as provided for in the APA, an original deposition transcript is not returned by a deponent or a deponent's counsel, or is not filed by a deponent, a deponent's counsel, or other individual, officer, or entity in possession of or last known to be in possession of the original transcript, a party to the contested case pending before SOAH shall be entitled to have a certified true copy of the deposition transcript filed under seal at the agency where the case is pending by the officer or a court reporter who transcribed the deposition testimony or their designee. Such a copy shall be presumed to be authentic unless an objecting party is able to rebut such a presumption by a preponderance of competent evidence.

(5) Admissibility of privileged or confidential communications. Pursuant to Chapters 159 and 160 of the Act, testimony, information, and material for which there may be a claim of privilege or confidential communication, shall be admissible at a SOAH hearing, provided the board shall protect all identifying information of any patient. No waiver of confidentiality shall be required for admission of peer review documents or records in proceedings before SOAH.

(6) Remedies and Sanctions. A failure to comply with a discovery request to the extent required by board rule, the Act, or as agreed to between the parties in a discovery agreement, the presiding ALJ should, after notice and hearing, make such orders in regard to the failure as are just, and issue one or more of the following:

(A) an order granting a continuance;

(B) an order limiting or restricting the admissibility and use of evidence, to include exclusion of evidence or testimony;

(C) an order for payment by a party of the actual travel, lodging, discovery expenses; hearing and court reporter costs; but not attorney fees, incurred by an opposing party as a result of the failure to comply with the discovery requirements under board rule;

(D) an order imposing a scheduling order providing for discovery deadlines necessary to remedy the failure to comply with discovery requirements under board rules;

(E) an order for remedies and sanctions agreed to by the parties in writing or on the record;

(F) an order disallowing further discovery of any kind or of a particular kind by the offending party;

(G) an order holding that designated facts be considered admitted for purposes of the proceeding;

(H) an order refusing to allow the offending party to support or oppose a designated claim or defense or prohibiting the party from introducing designated matters into evidence;

(I) an order disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of those request; or

(J) an order striking pleadings or testimony, or both, in whole or in part.

(7) Good Cause. Showing of good cause for failure to comply with a discovery request to the extent required by law, board rule, or as agreed to between the parties in a discovery agreement, may justify the imposition of less severe remedies or sanctions which might otherwise be imposed. Good cause shall include but is not limited to the following:

(A) lack of knowledge of the existence of the information or material;

(B) lack of access to or control of the information or material; and

(C) act of nature.

(8) Calculation of Deadlines and Time Limits. Discovery requests promulgated less than seven days prior to the scheduled hearing date shall not require a response unless agreed to by the parties on the record or in a writing signed by the parties or their representatives; however, other discovery requests promulgated at a time prior to the scheduled hearing date which by their timing allow less than the applicable deadline period for a response, shall not require a response until submitted for approval by motion of the requesting party to the ALJ and approved in whole or in part by order of the ALJ. Any such approval shall provide for one or more of the following:

(A) modified response deadlines;

(B) a continuance of the hearing date charged to the party requesting discovery; or

(C) such reasonable requirements which are necessary to minimize any anticipated burden or inconvenience to the responding party as a result of the lateness of the discovery request.

(9) Discovery Agreements. Discovery requirements governing SOAH proceedings may be modified by agreement of the parties either on the record or in a writing signed by the parties or their representatives without approval of an ALJ.

(10) Ordered Modification of Discovery. Modification of discovery requirements under board rules may be ordered by an ALJ pursuant only to a motion by a party, and upon a showing of good cause, in order to deviate from the discovery requirements and time limitations of the board’s rules and SOAH rules.

(11) Official Notice. No later than three days prior to the date of the hearing, the parties shall exchange lists specifying all matters which each party will seek to have officially noticed at the hearing.

(12) Final Witness List.

(A) Expert witnesses. A party must designate all expert witnesses within 20 days of receipt of written request, unless otherwise determined by the ALJ upon motion by movant for good cause, and in no event less than 30 days prior to the date of hearing.

(B) Fact witnesses. No later than 20 days prior to the date of the hearing, the parties shall exchange final lists identifying the names and last known addresses and phone numbers of all other witnesses other than expert witnesses each party intends to call to testify in its case‑in‑chief.

(13) Waiver of Privilege/Confidentiality. The provision of any information or material in response to a discovery request which may be the subject of a privilege or confidentiality requirement under the Act or other applicable law, including but not limited to the physician/patient privilege, mental health provider privilege, and the physician peer review process, shall not constitute a waiver of any such privilege or confidentiality requirement with respect to other such information or material not provided.

(14) Supplementation. Upon receiving new information or material, or upon otherwise determining that an inaccuracy exists in a previous discovery response, each party shall supplement such responses as soon as practicable.

(a) In an effort to expeditiously resolve outstanding complaints, mediation of complaints or petitions may be held through SOAH in compliance with §155.37 of SOAH rules. For any such proceeding:

(1) SOAH will provide a minimum of 30 days notice of any mediated settlement conference (MSC). In no event shall the MSC be held later than 30 days before the scheduled hearing unless agreed to by the parties.

(2) To the extent possible any MSC should be held soon after the complaint or petition is filed and before extensive discovery is initiated. If a party opposes a MSC, SOAH shall consider whether the request for the MSC was timely made.

(3) Any ordered MSC will not stay discovery unless agreed to by the parties.

(4) Board members and District Review Committee (DRC) members are not parties to actions pending before SOAH, and accordingly will not be ordered or expected to attend MSCs before SOAH. Board members and DRC members who attended the informal show compliance proceeding or Licensure Committee hearing will be invited by board staff to attend the MSC. If the board and DRC members who attended the informal show compliance proceeding, or the Licensure Committee members are unable to attend the MSC, then other members of the board and DRC may be invited to attend the MSC. In appropriate cases, board staff will make every effort to have a physician-member present.

(5) All proposed mediated agreed orders are not considered final until they are approved by the board.

(6) All mediated agreed orders shall be in writing and shall contain findings of facts, conclusions of law and board actions consistent with §187.9 of this title (relating to Board Actions).

(b) The costs of mediation shall be born equally by the parties, unless proof through affidavit and other reliable records such as tax returns show that a party is incapable of paying part of the costs of mediation.

(a) Recording by a court reporter. Each contested hearing may be recorded. Any recording of contested case proceedings shall be conducted in accordance with §§2001.059-.060 of the APA and §155.43 of SOAH rules.

(b) Costs. A stenographic reporter may sell copies of a transcript. If the respondent in the proceedings requests the original record of the testimony and evidence of a disciplinary hearing, the costs for the original record shall be borne by the respondent. When no party requests a transcript, but the ALJ requests a court reporter to prepare a transcript, SOAH shall bear the cost of any transcript requested by the ALJ unless the agency agrees to pay the cost or assess the cost as allowed. Any subsequent copies of the record shall be borne by any person requesting same.

(c) Corrections. Suggested corrections to the transcript of the record may be offered within 10 days after the transcript is filed in the proceeding, unless the ALJ shall permit suggested corrections to be offered thereafter. Suggested corrections shall be served in writing upon each party of record, the official reporter, and the ALJ. If suggested corrections are not objected to, the ALJ will direct the corrections to be made and the manner of making them. In case the parties disagree on suggested corrections, they may be heard by the ALJ which shall then determine the manner in which the record shall be changed, if at all.

(a) Rules. The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed, except that evidence inadmissible under those rules may be admitted if it meets the standards set out in the APA §2001.081, as discussed in this section. In all cases, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The ALJ shall give effect to the rules of privilege recognized by law. Opportunity must be afforded all parties to respond and present evidence and argument of all issues involved.

(b) Objections. Objections to evidentiary offers shall be made and shall be noted in the record. Formal exceptions to rulings of the ALJ during a hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the ALJ the action which he or she desires.

(c) Offer of proof. If evidence is excluded from the record by an exclusionary ruling of the ALJ the evidence may be included in the record by an offer of proof by the sponsoring party by dictating into the record or submitting in writing the substance of the evidence. An offer of proof shall be sufficient to preserve the evidence for review.

(d) Physician's office records. When subpoenaed by the board, unless stipulated by the parties, the office records of each patient shall have stapled thereto an affidavit in the form approved and furnished by the board which contains the requisite elements to comply with the Texas Rules of Evidence, 902 (10)(b), relating to form of affidavits.

(e) Peer review proceedings.