Part 24.
TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS
Chapter 575.
PRACTICE AND PROCEDURE
22 TAC §575.25
The Texas Board of Veterinary Medical Examiners adopts amendments
to §575.25 concerning Recommended Schedule of Sanctions without change
to the proposed text as published in the
Texas Register
on March 10, 2006 (31 TexReg 1585). The amended section reflects the
changes to the Veterinary Licensing Act made by the 79th Texas Legislature
that raised the maximum amount of administrative penalties that the Board
can impose from $2,500.00 for each violation not related to a controlled substance
to $5,000.00 per day for each violation of any kind. Other minor changes were
incorporated to assure full compliance with the legislative directives.
No comments were received regarding adoption of the amendments.
The amendments are adopted under the authority of §801.151(a)
of the Veterinary Licensing Act, Occupations Code, which gives the Board authority
to adopt rules necessary to administer the Act.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2006.
TRD-200603451
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 17, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 305-7555
22 TAC §575.27
The Texas Board of Veterinary Medical Examiners adopts amendments
to §575.27 concerning Complaints--Receipt, Investigation and Disposition,
with one change to the proposed text as published in the
Texas Register
on March 10, 2006 (31 TexReg 1586). The amended section
reflects changes to the Veterinary Licensing Act made by the 79th Texas Legislature.
Under the new procedures, two veterinarian members of the Board, instead of
one, will initially review all complaints that potentially involve medical
issues. For complaints that do not involve medical issues, a committee of
the Board's staff will review those complaints and propose a settlement to
the veterinarian who is subject to the complaint. An informal conference is
available for those veterinarians who do not wish to accept the staff's settlement
offer. For complaints involving medical issues, an informal conference is
held to hear the case, and two veterinarian members of the Board and one public
member must attend.
The purpose of the increased participation by Board members in the review
of cases is to assure that cases are considered from more than one viewpoint,
and thus increase the confidence of the public that the cases have been subject
to a full and fair review.
Subsection (e) of the section has been amended to address the consideration
of contested cases at the State Office of Administrative Hearings (SOAH).
New language addresses the negative consequences of a licensee failing to
respond to notice of scheduled SOAH hearings. This amended subsection clearly
states that if a licensee fails to appear at a SOAH hearing, the Board may
ask that the administrative law judge issue a default decision in favor of
the Board.
In accordance with the legislative changes, the section is amended to allow
restitution of expenses incurred by a complainant where a licensee is found
to have improperly diagnosed and/or treated the complainant's animal. The
amount of restitution may be in lieu of or in addition to other sanctions
imposed on the licensee. The Board and public benefit by having another method
of imposing sanctions.
One comment was received from a Board member, who asked that the amendments
clarify what kind of violations do not involve "medical judgment or practice."
Accordingly, subsection (c)(8)(B) is expanded to give two examples of non-medical
practices: continuing education and controlled substances certificates. The
addition is for clarification purposes.
The amendments are adopted under the authority of §801.151(a)
of the Veterinary Licensing Act, Occupations Code, which gives the Board authority
to adopt rules necessary to administer the Act.
§575.27.Complaints--Receipt, Investigation and Disposition.
(a)
Complaints against licensees.
(1)
All complaints filed by the public against board licensees
must be in writing on a complaint form provided by the board and signed by
the complainant. If a complaint is transmitted to the board orally or by means
other than in writing and the complaint alleges facts showing a continuing
or imminent threat to the public welfare, the requirement of a written complaint
may be waived until later in the investigative process.
(2)
Complaints by the board's enforcement section shall be
initiated by the opening of a complaint file.
(3)
The board shall maintain a log of complainants to whom
the board sends a complaint form.
(4)
Anonymous written complaints will not be investigated,
but will be logged and filed for information purposes only.
(5)
The board shall utilize violation code numbers to distinguish
between categories of complaints.
(b)
Complaints against non-licensees. Complaints against persons
alleged to be practicing veterinary medicine without a license may be investigated
and resolved informally by the executive director. Complaints not resolved
by the executive director may be referred by the board to a local prosecutor
or the attorney general for legal action.
(c)
Investigation of complaints.
(1)
The policy of the board is that the investigation of complaints
shall be the primary concern of the board's enforcement program, and shall
take precedence over all other elements of the enforcement program, including
compliance inspections.
(2)
The board shall investigate complaints based on the following
allegations, in order of priority:
(A)
acts or omissions, including those related to substance
abuse, that may constitute a continuing and imminent threat to the public
welfare;
(B)
acts or omissions of a licensee that resulted in the death
of an animal;
(C)
acts or omissions of a licensee that contributed to or
did not correct the illness, injury or suffering of an animal; and
(D)
all other act and omissions that do not fall within categories
(A) - (C) of this paragraph.
(3)
Upon receipt of a complaint, a letter of acknowledgment
will be promptly mailed to the complainant.
(4)
Complaints will be reviewed every thirty (30) days to determine
the status of the complaint. Parties to a complaint will be informed on the
status of a complaint at least on a quarterly basis.
(5)
Upon receipt of a complaint, a board investigator shall
review it and may interview the complainant to develop additional information.
If the investigator concludes that the complaint resulted from a misunderstanding,
is outside the jurisdiction of the board, or is without merit, the investigator
shall recommend through the director of enforcement to the executive director
that the investigation be closed. If the executive director concurs with the
recommendation, the complainant will be so notified, the investigation will
be closed, and the complaint file will be maintained in a secure file in the
board office. If the executive director does not concur with the recommendations,
the investigation will proceed.
(6)
If the executive director returns the complaint to the
investigator with a notation of non-concurrence under paragraph (5) of this
subsection, or if the executive director concurs with the investigator's determination
that a potential violation exists, the licensee is furnished with a copy of
the complaint, unless the executive director determines that an undercover
investigation is required. If no undercover investigation is required, the
investigator shall contact the licensee in writing, and request any patient
records or other pertinent documents deemed necessary for the investigation.
The investigator may schedule an interview with the licensee. The investigator
may request a written narrative statement from the licensee.
(7)
After the licensee's response to the complaint is received,
further investigation may be necessary to corroborate the information provided
by the complainant and the licensee. During the investigation, the investigator
shall interview the complainant. The investigator may request additional medical
opinions, supporting documents, and interviews with other witnesses.
(8)
Upon the completion of an investigation, the director of
enforcement shall present to the executive director a report of investigation
(ROI) and a conclusion as to the probability that a violation(s) exists.
(A)
If the executive director determines from the ROI that
the probability of a violation involving medical judgment or practice exists,
the director of enforcement shall forward a copy of the complaint file to
the board secretary and another board member (the "veterinarian members")
who will determine whether or not the complaint should be closed, further
investigation is warranted, or if the licensee should be invited to respond
to the complaint at an informal conference at the board offices.
(B)
If the probable violation does not involve medical judgment
or practice (example: administrative matters such as continuing education
and federal and state controlled substances certificates), the executive director
shall forward the complaint file to a committee of the executive director,
director of enforcement, the investigator assigned to the complaint, and general
counsel (the "staff committee"), which shall determine whether or not the
complaint should be dismissed, investigated further, or settled.
(C)
If the veterinarian members determine that a violation
has not occurred, the executive director or director of enforcement shall
notify the complainant and licensee in writing of the conclusion and that
the complaint is dismissed.
(D)
If the veterinarian members conclude that a probable violation(s)
exists, the executive director shall invite the licensee in writing to an
informal conference to discuss the complaint made against the licensee. If
the veterinarian members cannot agree to dismiss or refer the complaint to
an informal conference, the complaint will be automatically referred to an
informal conference. The letter invitation to the licensee must include a
list of the specific allegations of the complaint.
(E)
A complaint considered by the staff committee shall be
referred to an informal conference if:
(i)
the staff committee determines that the complaint should
not be dismissed or settled;
(ii)
the staff committee is unable to reach an agreed settlement;
or
(iii)
the licensee who is the subject of the complaint requests
that the complaint be referred to an informal conference.
(d)
Informal conferences
(1)
The informal conference is the last stage in the investigation
of a complaint. The licensee has the right to waive his or her attendance
at the conference. The licensee may be represented by counsel.
(2)
The board may be represented at the informal conference
by a conference committee of the executive director, the veterinarian members
and a public member of the board (if the complaint involves medical judgment
or practice), the director of enforcement, the investigator assigned to the
complaint, and the board's general counsel. The complainant and the licensee
and the licensee's legal counsel may attend the conference. Any other attendees
are allowed at the discretion of the executive director. The executive director
or the director of enforcement shall conduct the conference.
(3)
Subject to the discretion of the executive director, the
following procedure will be followed at the informal conference. The executive
director shall explain the purpose of the conference and the rights of the
participants, lead the discussion of the allegations of the complaint, and
explain the possible courses of action at the conclusion of the conference.
The licensee will be asked to respond to the allegations. The complainant
will be allowed to make comments relevant to the allegations. Comments of
the licensee and complainant must be addressed to the person conducting the
conference and not to each other. In the interest of maintaining decorum,
the licensee or complainant may be asked to leave the room while the other
is talking with the committee. The committee may ask questions of the licensee
and complainant in order to fully develop the complaint record.
(4)
At the conclusion of the informal conference, the conference
committee shall determine if a violation has occurred. If the conference committee
determines that a violation has not occurred, the conference committee will
dismiss the complaint, and will advise all parties of the decision and the
reasons why the complaint was dismissed.
(5)
If the conference committee determines that a violation
has occurred and that disciplinary action is warranted, the executive director
will advise the licensee of the alleged violations and offer the licensee
a settlement in the form of an agreed order that specifies the disciplinary
action and monetary penalty. With the agreement of the licensee, the conference
committee may recommend that the licensee refund an amount not to exceed the
amount the complainant paid to the licensee instead of or in addition to imposing
an administrative penalty on the licensee. The executive director must inform
the licensee that the licensee has a right to a hearing before an administrative
law judge on the finding of the occurrence of the violation, the type of disciplinary
action, and/or the amount of the recommended penalty.
(6)
Within 20 days after the date the licensee receives the
settlement offer, the licensee must submit a written response to the board
(A)
accepting the settlement offer and recommended disciplinary
action, or
(B)
requesting a hearing before an administrative law judge.
(7)
If the licensee accepts the settlement offer by signing
the agreed order, the agreed order will be docketed for board action at the
next regularly scheduled board meeting. The board may approve the agreed order
as docketed, approve the agreed order with amendments, or reject the agreed
order. If the board approves the agreed order with amendments, the executive
director shall mail the amended agreed order to the licensee and the licensee
shall have fourteen (14) days from receipt to accept the amended agreed order
by signing and returning it to the board. If a licensee does not sign an amended
agreed order or does not respond within the fourteen (14) days, the complaint
will be scheduled for a hearing before an administrative law judge. If the
board rejects the agreed order, the complaint may be scheduled for a hearing
before an administrative law judge, or the board may direct the executive
director to take other appropriate action.
(e)
Contested case hearing
(1)
If the licensee declines the board's settlement offer,
or if the licensee fails to respond timely to the offer, or if the board rejects
a proposed agreed order, the investigator of the complaint shall prepare a
complaint affidavit containing the allegations against the licensee. The signed
and notarized complaint affidavit will then be reviewed by the board's legal
counsel and signed by the executive director. The date the executive director
signs the complaint affidavit is the official date of filing the complaint
affidavit with the board. The complaint affidavit shall serve as the board's
pleading in a contested case. At least ten (10) days prior to a scheduled
hearing, the complaint affidavit and notice of hearing shall be served on
the licensee as set out in subsection (e) (3) (A) of this section.
(2)
The executive director shall submit to the State Office
of Administrative Hearings (SOAH) a completed Request to Docket Case requesting
SOAH to set a hearing and/or assign an administrative law judge to the contested
case. The board shall provide notice of the time, date, and place of the hearing
to the licensee. Following issuance of a proposal for decision by the administrative
law judge, the board by order may find that a violation has occurred and impose
disciplinary action, or find that no violation has occurred. The board shall
promptly advise the complainant of the board's action.
(3)
Notice of SOAH hearing; continuance and default
(A)
The board shall send notice of a contested case hearing
before SOAH to the licensee's last known address as evidenced by the records
of the board. Notice shall be given by first class mail, certified or registered
mail, or by personal service.
(B)
If the licensee fails to timely enter an appearance or
answer the notice of hearing, the board is entitled to a continuance at the
time of the hearing. If the licensee fails to appear at the time of the hearing,
the board may move either for dismissal of the case from the SOAH docket,
or request that the administrative law judge issue a default proposal for
decision in favor of the board.
(C)
Proof that the licensee has evaded proper notice of the
hearing may also be grounds for the board to request dismissal of the case
or issuance of a default proposal for decision in favor of the board.
(f)
Contingency. The board president shall appoint another
licensee board member to assume the duties of the board secretary in the complaint
process in the event the board secretary is unable to serve in the capacity
set out in this section.
(g)
Report to the board of dismissed complaints. The executive
director or the director of enforcement shall advise the board at each scheduled
meeting of the complaints dismissed since the last meeting. The information
will consist of a summary of the allegations, investigation conducted, reasons
for dismissal, and file number.
(h)
Use of Private Investigators. The executive director may
approve the use of private investigators to assist in investigation of complaints
where the use of board investigators is not feasible or economical or where
private investigators could provide valuable assistance to the board investigators.
Private investigators may be utilized in cases involving honesty, integrity
and fair dealing; reinstatement applications; solicitation; fraud; dangerous
drugs and controlled substances; and practicing veterinary medicine without
a license. Private investigators will be utilized in accordance with existing
purchasing rules of the Texas Building and Procurement Commission.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2006.
TRD-200603453
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 17, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 305-7555
22 TAC §575.31
The Texas Board of Veterinary Medical Examiners ("Board")
adopts new section §575.31 concerning Alternative Dispute Resolution
(ADR) without change to the proposed text as published in the
Texas Register
on March 10, 2006 (31 TexReg 1588). The section reflects
legislation passed by the 79th Legislature requiring the Board to adopt a
policy encouraging the use of ADR in resolving internal and external disputes.
The section clearly states this policy, appoints the Board's general counsel
as the dispute resolution coordinator to assure that the policy is carried
out, and informs the public of the steps that need to be taken to request
ADR. Other issues are addressed to insure that the public is fully informed
of the new procedures.
No comments were received regarding adoption of the new section.
The section is adopted under the authority of §801.151(a)
of the Occupations Code which gives the Board authority to adopt rules necessary
to administer the Veterinary Licensing Act, and §801.162 of the Occupations
Code which directs the Board to develop and implement a policy to encourage
the use of ADR.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2006.
TRD-200603454
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 17, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 305-7555
22 TAC §575.32
The Texas Board of Veterinary Medical Examiners ("Board")
adopts new §575.32 concerning Negotiated Rulemaking without change to
the proposed text as published in the
Texas Register
on March 10, 2006 (31 TexReg 1589). The section reflects legislation
passed by the 79th Legislature requiring the Board to adopt a policy encouraging
the use of negotiated rulemaking in adopting Board rules. The section clearly
states this policy, appoints the Board's general counsel as the negotiated
rulemaking coordinator to assure that the policy is carried out, and informs
the public of the steps that need to be taken to implement the policy in a
given situation.
No comments were received regarding adoption of the new section.
The section is adopted under the authority of §801.151(a)
of the Occupations Code which gives the Board authority to adopt rules necessary
to administer the Veterinary Licensing Act, and §801.162 of the Occupations
Code which directs the Board to develop and implement a policy to encourage
the use of negotiate rulemaking.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2006.
TRD-200603455
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 17, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 305-7555
Subchapter A. BOARD MEMBERS AND MEETINGS--DUTIES
22 TAC §577.2
The Texas Board of Veterinary Medical Examiners adopts amendments
to §577.2 concerning Meetings without change to the proposed text as
published in the
Texas Register
on March 10,
2006 (31 TexReg 1590). The amended section governs the conduct of the Board's
meetings. The section is changed to allow the Board to efficiently conduct
its meeting by allowing it to direct the location and placement of equipment
in the meeting room, while ensuring the public's right to record or videotape
a Board proceeding without undue restrictions.
No comments were received regarding adoption of the amended section.
The amendments are adopted under the authority of §801.151(a)
of the Texas Occupations Code which gives the Board authority to adopt rules
necessary to administer the Veterinary Licensing Act and §551.023 of
the Government Code which authorizes agencies to adopt reasonable rules for
the placement of recording equipment and the manner in which the recording
is conducted.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2006.
TRD-200603456
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 17, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 305-7555
Chapter 661.
GENERAL RULES OF PROCEDURES AND PRACTICES
Subchapter D. APPLICATIONS, EXAMINATIONS, AND LICENSING
22 TAC §661.52
The Texas Board of Professional Land Surveying (TBPLS) adopts
new §661.52, concerning Inactive Status, without changes to the proposed
text as published in the February 3, 2006, issue of the
Texas Register
(31 TexReg 645) and will not be republished.
The new rule will clarify the procedures for implementing §1071.263
of the Professional Land Surveying Practices Act.
No comments were received regarding the new rule.
The new rule is adopted pursuant to §1071.151, Title 6,
Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce
reasonable and necessary rules to perform its duties and to comply with Sunset
Commission requirements.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2006.
TRD-200603444
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: July 16, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 239-5263
22 TAC §661.55
The Texas Board of Professional Land Surveying (TBPLS) adopts
new §661.55, concerning Surveying Firms, without changes to the proposed
text as published in the March 3, 2006, issue of the
Texas Register
(31 TexReg 1408) and will not be republished.
The new rule will clarify §1071.352 and §1071.353 regarding the
responsibility of firms offering land surveying services.
No comments were received regarding the new rule.
The new rule is adopted pursuant to §1071.151, Title 6,
Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce
reasonable and necessary rules to perform its duties and to comply with Sunset
commission requirements.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2006.
TRD-200603445
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: July 16, 2006
Proposal publication date: March 3, 2006
For further information, please call: (512) 239-5263
22 TAC §661.63
The Texas Board of Professional Land Surveying (TBPLS) adopts
a new rule §661.63, concerning Frivolous Complaints, without changes
to the proposed text as published in the February 3, 2006, issue of the
The new rule will clarify the definition of frivolous and harassment as
used in §1071.204(f) of the Professional Land Surveying Practices Act.
No comments were received regarding the new rule.
The new rule is adopted pursuant to §1071.151, Title 6,
Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce
reasonable and necessary rules to perform its duties and to comply with Sunset
Commission requirements.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2006.
TRD-200603442
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: July 16, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 239-5263
Subchapter B. PROFESSIONAL AND TECHNICAL STANDARDS
22 TAC §663.18
The Texas Board of Professional Land Surveying (TBPLS) adopts
an amendment to §663.18, concerning Certification, without changes to
the proposed text as published in the February 3, 2006, issue of the
The amendment will further clarify what the surveyor may certify to.
No comments were received regarding adoption of the amendment.
The amendment is adopted pursuant to §1071.151, Title 6,
Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce
reasonable and necessary rules to perform its duties.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2006.
TRD-200603443
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Effective date: July 16, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 239-5263
Chapter 711.
DIETITIANS
Chapter 577.
GENERAL ADMINISTRATIVE DUTIES
Part 29.
TEXAS BOARD OF PROFESSIONAL LAND SURVEYING
Subchapter E. CONTESTED CASES
Chapter 663.
STANDARDS OF RESPONSIBILITY AND RULES OF CONDUCT
Part 31.
TEXAS STATE BOARD OF EXAMINERS OF DIETITIANS