Part 24.
TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS
Chapter 575.
PRACTICE AND PROCEDURE
22 TAC §575.25
The Texas Board of Veterinary Medical Examiners ("Board")
proposes amendments to §575.25, concerning Recommended Schedule of Sanctions.
The 79th Texas Legislature amended the Veterinary Licensing Act ("Act")
to increase the maximum amount of administrative penalties that the Board
can impose from $2500.00 for each violation not related to a controlled substance
to $5000.00 per day for each violation of any kind. This section is proposed
for amendment to update the Board's schedule of sanctions which is based on
the amount specified in the Act.
Mr. Ron Allen, Executive Director, has determined that for the first five-year
period the amended section is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
section, except for the small additional amount of increased penalties that
the Board will collect each year.
Mr. Allen has also determined that for the first five years the amended
section is in effect the public benefit anticipated as a result of enforcing
the section will be to encourage licensee compliance with the Act and Board
rules, thereby assuring the public that standards of the profession are being
met. There will be no effect on small or micro businesses. There will be no
economic cost to persons required to comply with the amended section as proposed,
except for the small number of licensees that may be required to pay enhanced
penalties.
Comments on the proposed amendments may be submitted in writing to Julie
Barker, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite
3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail
vet.board@tbvme.state.tx.us, and will be accepted 30 days following publication
in the
Texas Register
.
The amendments are proposed under the authority of the Veterinary
Licensing Act, Occupations Code, §801.151(a) which states that the Board
may adopt rules necessary to administer this chapter, and §801.401, which
authorizes the Board to impose an administrative penalty.
The amendments affect the Veterinary Licensing Act, Occupations Code, Subchapter
J, relating to administrative penalties.
§575.25.Recommended Schedule of Sanctions.
(a)
Class A violations. Licensees considered as presenting
imminent peril to the public will be considered Class A violators. In determining
whether a violation is a Class A, consideration will be given to the disposition
of any previously docketed cases, and to the combination of charges which
might involve Class B and/or C violations.
(1) - (2)
(No change.)
(3)
Maximum penalties:
(A)
(No change.)
(B)
a penalty not exceeding
$5,000
[
[
(C)
[
(D)
[
(b)
Class B violations. Involves licensees who have violated
rules and/or statutes or have committed a Class C violation within the last
36-month period. In determining whether a violation is a Class B, consideration
will be given to the disposition of the previously docketed cases, and to
the combination of charges which might involve Class A and/or C violations.
(1) - (2)
(No change.)
(3)
Maximum penalties:
(A)
one to 10-year
license
suspension with none,
all, or part probated;
(B)
a penalty not exceeding
$5,000
[
[
(C)
[
(D)
[
(c)
Class C violations. Involve licensees who have violated
the rules and/or statutes, but do not have a history of previous violations.
Consideration should be given to the nature and severity of the violation(s).
(1) - (2)
(No change.)
(3)
Maximum penalties:
(A)
(No change.)
(B)
an administrative penalty not to exceed $500 for each violation
per day
.
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 February 27, 2006.
TRD-200601031
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: June 15, 2006
For further information, please call: (512) 305-7555
22 TAC §575.27
The Texas Board of Veterinary Medical Examiners ("Board")
proposes amendments to §575.27, concerning Complaints--Receipt, Investigation
and Disposition.
The 79th Texas Legislature proposed several significant changes in the
way the Board processes complaints. These changes are reflected in the proposed
amended section. A complaint that involves medical expertise or judgment will
be reviewed by two veterinarian Board members. For complaints not requiring
medical expertise, a committee of the Board's staff is authorized to review
and enter into a possible settlement of the complaint, which, in turn, must
be approved by the Board. In informal conferences held to consider complaints
involving medical expertise, two veterinarians and one public member of the
Board must be present. The Board is also empowered to order restitution paid
by the licensee to the complainant, not to exceed the amount the veterinary
bill paid by the complainant, as part of a settlement.
Subsection (e) of the section has been re-written to clarify how cases
involving unresolved complaints are referred to and heard by the State Office
of Administrative Hearings ("SOAH"). In addition, to resolve a frequent question
as to how complaints at SOAH should be handled when the complainant does not
appear at a contested hearing, a new subsection has been added which requires
that notice of a contested case hearing be sent to a licensee's last known
address. If, after proper notice, the licensee fails to appear, the Board
may ask the administrative law judge to issue a default proposal for decision
in favor of the Board.
Mr. Ron Allen, Executive Director, has determined that for the first five-year
period the amended section is in effect there will be fiscal implications
for state government as a result of enforcing or administering the section.
The fiscal implications of requiring two additional Board members to attend
informal conferences in Austin will be approximately $18,660 per year in additional
costs for travel, per diem and postage.
Mr. Allen has also determined that for the first five years the section
is in effect the public benefit anticipated as a result of enforcing the amended
section will be to increase the quality of decision making on complaints by
having early review of complaints by additional Board members, and increase
the efficiency of handling contested cases at SOAH. There will be no effect
on small or micro businesses. There will be no economic cost to persons required
to comply with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Julie
Barker, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite
3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail
vet.board@tbvme.state.tx.us, and will be accepted for 30 days following publication
in the
Texas Register
.
The amendments are proposed under the authority of the Veterinary
Licensing Act, Occupations Code, §801.151(a) which states that the Board
may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Occupations Code, §§801.2055,
801.2056 and 801.408.
§575.27.Complaints--Receipt, Investigation and Disposition.
(a) - (b)
(No change.)
(c)
Investigation of complaints.
(1) - (7)
(No change.)
(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")
[
(B)
If the probable violation does not involve
medical judgment or practice, the executive director shall [
(C)
If the
veterinarian members
[
(D)
[
(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
[
(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
[
(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
[
(4)
At the conclusion of the informal conference, the
conference committee
[
(5)
If the
conference committee
[
(6) - (7)
(No change.)
(e)
Contested case
[
(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 [
(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
[
(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) - (g)
(No change.)
(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
[
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 February 27, 2006.
TRD-200601032
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: June 15, 2006
For further information, please call: (512) 305-7555
22 TAC §575.31
The Texas Board of Veterinary Medical Examiners ("Board")
proposes a new section §575.31 concerning Alternative Dispute Resolution
(ADR). The 79th Texas Legislature amended the Veterinary Licensing Act to
require the Board to develop and implement a policy encouraging the use of
ADR to assist in the resolution of internal and external disputes. Other requirements
were added, and the Board was directed to appoint a trained person to coordinate
the implementation of the Board's ADR policy. The new section states the Board's
policy as required by the statute, and appoints the Board's general counsel
or his designee as the agency's dispute resolution coordinator (DRC). Requests
for ADR must be addressed in writing to the DRC, and any costs associated
with retaining a mediator or arbitrator shall be paid by the party requesting
ADR. Any agreements resulting from ADR must be in writing and are enforceable
as with any written contract.
Mr. Ron Allen, Executive Director, has determined that for the first five-year
period the new section is in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the section.
Mr. Allen has also determined that for the first five years the new section
is in effect the public benefit anticipated as a result of enforcing the section
will be to resolve disputes more quickly and impartially. There will be no
effect on small or micro businesses. There will be no economic cost to persons
required to comply with the section as proposed.
Comments on the proposed section may be submitted in writing to Julie Barker,
Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin,
Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail vet.board@tbvme.state.tx.us,
and will be accepted for 30 days following publication in the
Texas Register
.
The section is proposed under the authority of the Veterinary
Licensing Act, Occupations Code, §801.151 (a), which states that the
Board may adopt rules necessary to administer the chapter. The amendments
affect the Veterinary Licensing Act, Occupations Code, §801.162 relating
to Alternative Rulemaking and Dispute Resolution Procedures.
§575.31.Alternative Dispute Resolution (ADR).
(a)
The board's policy is to encourage the resolution and early
settlement of internal and external disputes, including contested cases, through
voluntary settlement processes, which may include any procedure or combination
of procedures described by Chapter 154, Civil Practice and Remedies Code.
Any ADR procedure used to resolve disputes before the board shall comply with
the requirements of Chapter 2009, Government Code, and any model guidelines
for the use of ADR issued by the State Office of Administrative Hearings.
(b)
The board's general counsel or his designee shall be the
board's dispute resolution coordinator (DRC). The DRC shall perform the following
functions, as required:
(1)
coordinate the implementation of the policy set out in
subsection (a) of this section;
(2)
serve as a resource for any staff training or education
needed to implement the ADR procedures; and
(3)
collect data to evaluate the effectiveness of ADR procedures
implemented by the board.
(c)
The board, a committee of the board, a respondent in a
disciplinary matter pending before the board, the executive director, or a
board employee engaged in a dispute with the executive director or another
employee, may request that the contested matter be submitted to ADR. The request
must be in writing, be addressed to the DRC, and state the issues to be determined.
The person requesting ADR and the DRC will determine which method of ADR is
most appropriate. If the person requesting ADR is the respondent in a disciplinary
proceeding, the executive director shall determine if the board will participate
in ADR or proceed with the board's normal disciplinary processes.
(d)
Any costs associated with retaining an impartial third
party mediator, moderator, facilitator, or arbitrator, shall be borne by the
party requesting ADR.
(e)
Agreements of the parties to ADR must be in writing and
are enforceable in the same manner as any other written contract. Confidentiality
of records and communications related to the subject matter of an ADR proceeding
shall be governed by §154.073 of the Civil Practice and Remedies Code.
(f)
If the ADR process does not result in an agreement, the
matter shall be referred to the board for other appropriate disposition.
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 February 27, 2006.
TRD-200601033
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: June 15, 2006
For further information, please call: (512) 305-7555
22 TAC §575.32
The Texas Board of Veterinary Medical Examiners ("Board")
proposes a new section §575.32 concerning Negotiated Rulemaking. The
79th Texas Legislature amended the Veterinary Licensing Act to require the
Board to develop and implement a policy encouraging the use of negotiated
rulemaking procedures for the adoption of Board rules. Other requirements
were added, and the Board was directed to appoint a trained person to coordinate
the implementation of the policy. The new section states the Board's policy
as required by the statute, and appoints the Board's general counsel or his
designee as the agency's negotiated rulemaking coordinator (NRC) to coordinate
the Board's rulemaking procedures, serve as a resource for any required staff
training, and collect data to evaluate the effectiveness of negotiated rulemaking
procedures implemented by the Board. The Board, the rules committee, or the
executive director may direct the NRC to begin negotiated rulemaking procedures
on a specified subject.
Mr. Ron Allen, Executive Director, has determined that for the first five-year
period the new section is in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the section.
Mr. Allen has also determined that for the first five years the new section
is in effect the public benefit anticipated as a result of enforcing this
section will be to streamline and make more efficient certain rulemaking procedures
undertaken by the Board. There will be no effect on small or micro businesses.
There will be no economic cost to persons required to comply with the section
as proposed.
Comments on the proposes section may be submitted in writing to Julie Barker,
Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin,
Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail vet.board@tbvme.state.tx.us,
and will be accepted for 30 days following publication in the
Texas Register
.
The section is proposed under the authority of the Veterinary
Licensing Act, Occupations Code, §801.151 (a), which states that the
Board may adopt rules necessary to administer this chapter. The amendments
affect the Veterinary Licensing Act, Occupations Code, §801.162 relating
to Alternative Rulemaking and Dispute Resolution Procedures.
§575.32.Negotiated Rulemaking.
(a)
The board's policy is to encourage the use of negotiated
rulemaking for the adoption of board rules in appropriate situations.
(b)
The board's general counsel or his designee shall be the
board's negotiated rulemaking coordinator (NRC). The NRC shall perform the
following functions, as required:
(1)
coordinate the implementation of the policy set out in
subsection (a) of this section, and in accordance with the Negotiated Rulemaking
Act, Chapter 2008, Government Code;
(2)
serve as a resource for any staff training or education
needed to implement negotiated rulemaking procedures; and,
(3)
collect data to evaluate the effectiveness of negotiated
rulemaking procedures implemented by the board.
(c)
The board, its rules committee, or the executive director
may direct the NRC to begin negotiated rulemaking procedures on a specified
subject.
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 February 27, 2006.
TRD-200601034
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: June 15, 2006
For further information, please call: (512) 305-7555
Subchapter A. BOARD MEMBERS AND MEETINGS--DUTIES
$2,500
] for each [
non-drug
] violation
per day
;
(C)
a penalty not exceeding $5,000
for each violation related to a controlled substances;]
(D)
] continuing education in a
specified field related to the practice of veterinary medicine that the board
deems relevant to the violation(s). The total number of hours mandated are
[
not
] in addition to the number of hours required to renew the
veterinary license;
(E)
] quarterly reporting certifying
compliance with
board
orders.
$2,500
] for each violation
per day
;
(C)
a penalty not exceeding $5,000
for each violation related to a controlled substance]
(D)
] continuing education in a
specified field related to the practice of veterinary medicine that the board
deems relevant to the violation(s). The total number of hours mandated are
[
not
] in addition to the number of hours required to renew the
veterinary license; and/or
(E)
] quarterly reporting certifying
compliance with board orders.
,
] who will determine whether or not the complaint
should be
closed
[
close
], further investigation is warranted,
or if the licensee should be invited to respond to the complaint at an informal
conference at the board offices.
not
]
forward the complaint file to
a committee of
[
the board secretary,
and
] 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
[
closed
],
investigated
further
,
[
investigation is warranted,
] or
settled
[
if the licensee
should be invited to respond to the complaint at an informal conference at
the board offices
].
board secretary or executive director
]
determine
[
determines
] 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.
(9)
] If the
veterinarian members
[
board secretary or executive director
]
conclude
[
concludes
] that a probable violation(s)
exists
[
does
exist
], 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.
process
]. The licensee has the right to waive
his or her attendance at the conference. The licensee may be represented by
counsel.
board secretary
] (if the complaint involves medical judgment or practice), the director
of enforcement, the investigator assigned to the complaint,
and
the
board's
general
[
legal
] counsel [
and a public member
of the board
]. 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. [
The board secretary, with
the advice of the other members of the committee, determines the recommended
disposition of a complaint involving medical judgement or practice.
]
read
] 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.
board secretary or executive director, as
appropriate,
] shall determine if a violation has occurred. If the
conference committee
[
board secretary or executive director
]
determines that a violation has not occurred, the
conference committee
[
board secretary or executive director
] will dismiss the
complaint, and will advise all parties of the decision and the reasons why
the complaint was dismissed.
board secretary
or executive director
] determines that a violation has occurred and
that disciplinary action is warranted, the [
board secretary or
]
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
[
board secretary or
] 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.
Administrative law
]
hearing
complaint
] 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
[
The
] complaint affidavit
and notice of hearing shall be
[
is then
] served on the licensee
as set out in subsection (e)(3)(A)
of this section
[
by certified mail or personal service at least
ten (10) days prior to a scheduled hearing
].
complaint
]. 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.
General
Services
] Commission.
Chapter 577.
GENERAL ADMINISTRATIVE DUTIES