§75.11.22 TAC §75.5

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Chiropractic Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Occupations Code, §201.152, which the board interprets as authorizing it to adopt rules necessary for the performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the Chiropractic Act, and Chapter 201, Subchapters E and K, which the board interprets as authorizing or requiring it to adopt rules relating to the complaint process and disciplinary procedures.

The following are the statutes, articles, or codes affected by the repeal, the new section and the amendments: Chapter 75-Occupations Code, §§201.152, Subchapters E, K.

§75.5.Witness Fees.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 31, 2000.

TRD-200000677

Gary K. Cain, Ed.D.

Executive Director

Texas Board of Chiropractic Examiners

Earliest possible date of adoption: March 12, 2000

For further information, please call: (512) 305-6709

The Texas Board of Chiropractic Examiners proposes an amendment to §76.1, repeal of §§76.3-76.6, and new §§76.3, 76.5, 76.7, 76.9, 76.11, 76.13, 76.15, 76.17, and 76.19, concerning Investigations. Chapter 75 of the board's rules partially covers the same subject matter of the current §§76.4-76.6. These sections, therefore, are being merged with revisions to Chapter 75. Section 76.3, relating to release of patient records and other information from licensees, is being transferred to Chapter 80 as new §80.3. These changes are made in conjunction with the board's review of Chapter 75, which covers complaint and disciplinary matters, and Chapter 80, which contains miscellaneous provisions. These and other proposed amendments to Chapters 75 and 80 are published in this issue of the Texas Register .

In this rulemaking, Chapter 76 is re-titled "Formal SOAH Proceedings," and new sections relating to procedures applicable to hearings held by the State Office of Administrative Hearings (SOAH) are proposed. SOAH rules or the APA govern most of the actual hearing process for contested disciplinary and licensure matters when a formal hearing is required. As a result, the board needs only minimal rules relating to the hearing process, on matters within its jurisdiction. The review of Chapter 75 revealed the need to update the boards rules to reflect the respective authorities of the board, the SOAH and the APA. The proposed sections reference the applicability of the APA and SOAH rules and cover procedural matters leading up to a hearing, such as filing a case with the SOAH, pleadings, a party's appearance or lack of appearance, and issuance of deposition commissions and subpoenas, and post-hearing matters, such as the proposal for decision, exceptions and replies to the proposal, and the preparation and cost of the administrative record, concluding with the board's decision in a matter. Current §75.5, relating to witness fees, is merged with new §76.13, relating to depositions, subpoenas, and witness expenses. The costs associated with the appearance of a witness have been revised to comport with the rates provided by the APA, §2001.103. Section 75.5's subject matter is more appropriately placed in Chapter 76.

Dr. Cynthia Vaughn, D. C., Chair, Rules Committee, has determined that for the first five-year period the proposed amendment, new sections and repeals are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment, new sections and repeal of the existing sections. The proposed revised rates for witness expenses in §76.13 represent an increase of $25 in the overall rate when compared to the current board rule, §75.5; that increase is due to the fact that the current rule does not provide for reimbursement for meals. However, the APA requires that witnesses be reimbursed meals at actual cost, not to exceed $25; therefore, this cost is currently in effect, regardless of the board rule.

Dr. Vaughn has also determined that for each year of the first five years, the proposed amendment, new sections and repeals are in effect, the public benefit anticipated as a result of enforcing the chapter as amended will be better notice to licensees and the public of procedures and requirements relating to licensure and disciplinary hearing matters. The purpose of these rules is to provide notice of board policy and to set out necessary procedures within the board's jurisdiction as well as to give notice generally of each step in the complaint resolution and disciplinary process. These proposed rules along with the amendments to Chapter 75 are designed to complement SOAH rules and the APA, providing procedures for matters not covered by SOAH rules or the APA or for which jurisdiction resides, entirely or partially, with the board. There is no anticipated economic effect on small or micro businesses or economic cost to persons who are required to comply with the proposed sections as a result of the proposed repeal or amendments. For the reason indicated previously, parties responsible for their witness fees, including the board, under proposed §76.13 will not experience any increase in total cost for which they are not currently responsible under board rules and state law.

Comments may be submitted, in writing, no later than 30 days after the date of publication of this proposed rulemaking, to Joyce Kershner, Rules Committee, Texas Board of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 78701.