22 TAC §§194.1-194.12
The Texas State Board of Medical Examiners proposes new §§194.1-194.12
regarding non-certified radiologic technicians. The new sections will outline
the requirements for registration and disciplinary action relating to persons
who perform radiologic procedures under the supervision of licensed physicians.
The new sections are proposed to implement the provisions of the Medical
Radiologic Technologist Certification Act, Texas Civil Statutes, Article
4512m. The proposal is submitted with simultaneous repeal of board rules,
§193.7, Radiologic Technologists.
Tony Cobos, general counsel, has determined that for the first five-year
period the sections are in effect there will be fiscal implications as a
result of enforcing or administering the sections as proposed which will
be offset by the registration fees collected.
Mr. Cobos also has determined that for each year of the first five years
the sections as proposed are in effect the public benefit anticipated as
a result of enforcing the sections will be to register properly trained individuals
to perform radiologic procedures under the supervision of licensed physicians
and to have guidelines for taking disciplinary action should the need arise.
There may be some effect on small businesses which offer training programs.
There is anticipated economic cost to persons who are required to comply
with the sections as proposed, but the exact amount cannot be determined
at the present time.
Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901,
Austin, Texas 78768-2018. A public hearing will be held at a later date.
The new sections are proposed under the Medical Practice Act,
Texas Civil Statutes, Article 4495b, §2.09(a), which provide the Texas
State Board of Medical Examiners with the authority to make rules, regulations
and bylaws not inconsistent with this Act as may be necessary for the governing
of its own proceedings, the performance of its duties, the regulation of
the practice of medicine in this state, and the enforcement of this Act.
Medical Radiologic Technologist Certification Act, Texas Civil Statutes,
Article 4512m, is affected by this proposal.
§194.1. Purpose.
The purpose of these rules is to implement the provisions of the Medical
Radiologic Technologist Certification Act, Texas Civil Statutes, Article
4512m, applicable to non-certified radiologic technicians or non-certified
technicians.
§194.2. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
Board
-The Texas State Board of Medical Examiners.
Non-certified technician (NCT) or registrant
-A person who:
(A)
has completed a training program approved by
the Texas Department of Health by January 1, 1998; however, if the person
is employed after January 1, 1998, the training program approved by the Texas
Department of Health shall be completed prior to the person performing radiologic
procedures for any medical purpose;
(B)
after January 1, 1998, is listed on the registry with
the Texas Department of Health; and
(C)
is registered with the Board.
Supervision
-Responsibility for and control of quality, radiation
safety and protection, and technical aspects of the application of ionizing
radiation to human beings for diagnostic purposes.
TRCR
-Texas Regulations for the Control of Radiation, 25 Texas
Administrative Code, Chapter 289. The regulations are available from the
Standards Branch, Bureau of Radiation Control, Texas Department of Health.
§194.3. Registration.
(a)
Any person performing radiologic procedures, as defined
in § 194.5 of this chapter (relating to Non-Certified Technician's Scope
of Practice), under the supervision of a licensed Texas physician must be
registered with the Texas State Board of Medical Examiners.
(b)
This section does not apply to registered nurses, physician
assistants, or to persons certified by the Department of Health under the
Medical Radiologic Technologist Certification Act.
(c)
An applicant shall make application for registration with
the board on a form provided by the board, which includes a list of the applicant's
supervising physician(s), and shall pay the appropriate fee established by
the board. Multiple physicians, each of whom will have an equal right and
responsibility to supervise a particular non-certified technician at different
times at the same geographic location, may be listed on a single application
form.
(d)
Applicants shall:
(1)
receive training and instruction as set out in 25 Texas
Administrative Code, §143.17 (relating to Mandatory Training Programs
for Non-Certified Technicians). The completion of mandatory training shall
be demonstrated by proof of an applicant's registry with the Texas Department
of Health; and
(2)
be 18 years of age or older.
§194.4. Annual Renewal.
(a)
Registrants shall renew the registration annually by submitting
a registration application, paying a fee, as specified by the board, to the
Texas State Board of Medical Examiners by cashiers check or money order,
and providing proof of the registrant's renewal of status on the Texas Department
of Health registry.
(b)
If the annual registration fee and if proof of the registrant's
renewal status on the Texas Department of Health registry is not received
on or before the expiration date of the registration, the following penalty
will be imposed:
(1)
one to 90 days late - $25.00 plus the required annual registration
fee;
(2)
over 90 days late - registration will be submitted
to the board for cancellation.
(c)
The board by rule may adopt a system under which registrations
expire on various dates during the year. For the year in which the expiration
date is changed, registration fees payable on or before January 1 shall be
prorated on a monthly basis so that each registrant shall pay only that portion
of the registration fee which is allocable to the number of months during
which the registration is valid. On renewal of the registration on the new
expiration date, the total registration is payable.
(d)
Registrants shall inform the board of address changes within
two weeks.
§194.5. Non-Certified Technician's Scope of Practice.
(a)
A registrant may only perform the following radiologic
procedures:
(1)
chest, spine, extremities, abdomen, and skull studies utilizing
standard film or film screen combinations and an x-ray tube that is stationary
at the time of exposure; or
(2)
bone densitometry utilizing a dual energy x-ray densitometer.
(b)
A registrant may not perform studies which require use
of contrast agents unless the registrant's supervising physician is physically
present on the premises.
(c)
A registrant may not perform a radiologic procedure which
has been identified as dangerous or hazardous by the Texas Department of
Health in 25 Texas Administrative Code 143.16 (relating to Dangerous
or Hazardous Procedures).
(d)
A registrant shall perform radiologic procedures under
the supervision, instruction, or direction of a physician physically present
on the premises.
(e)
All registrants must comply with the safety rules of the
Texas Department of Health relating to the control of radiation as set forth
in that department's document titled, "Texas Regulations for Control of Radiation."
§194.6. Suspension, Revocation or Nonrenewal of Registration.
(a)
The board may refuse to issue a registration to an applicant
and may, following notice of hearing and a hearing as provided for in the
Administrative Procedure Act, take disciplinary action against any non-certified
technician who:
(1)
violates the Medical Practice Act, the rules of the Texas
State Board of Medical Examiners, an order of the board previously entered
in a disciplinary proceeding, or an order to comply with a subpoena issued
by the board;
(2)
violates the Medical Radiologic Technologist Certification
Act or the rules promulgated by the Texas Department of Health;
(3)
violates the rules of the Texas Department of Health
for control of radiation;
(4)
obtains, attempts to obtain, or uses a registration
by bribery or fraud;
(5)
engages in unprofessional conduct, including, but
not limited to, conviction of a crime, commission of any act that is in violation
of the laws of the State of Texas if the act is connected with provision
of health care, and commission of an act of moral turpitude;
(6)
develops or has an incapacity that prevents the practice
of radiologic technology with reasonable skill, competence, and safety to
the public as a result of:
(A)
an illness;
(B)
drug or alcohol dependency; or habitual use of drugs or
intoxicating liquors; or
(C)
another physical or mental condition;
(7)
fails to practice as a non-certified technician
in an acceptable manner consistent with public health and welfare;
(8)
has disciplinary action taken against a certification,
permit, or registration as a non-certified technician in another state, territory,
or country or by another regulatory agency;
(9)
engages in acts requiring registration under these
rules without a current registration from the board.
(10)
is removed, suspended, or has had disciplinary action
taken against the registrant.
(b)
The board may suspend, revoke, or refuse to renew the registration
of a non-certified technician, upon a finding that a non-certified technician
has committed any offense listed in this section.
§194.7. Disciplinary Entity.
Hearings on alleged statutory or rules violations by a non-certified
technician and discipline of a non-certified technician shall be conducted
by the board in accordance with the rules for such hearings following review
of the allegations against the non-certified technician by representatives
of the board and recommendation of such representatives that a hearing be
conducted with regard to such allegations.
§194.8. Procedure - General.
(a)
Applicability. These rules shall govern the procedures
for the institution, conduct, and determination of all causes and proceedings
before the board. The purpose of these sections is to provide for a simple
and efficient system of procedure before the board; to ensure uniform standards
of practice and procedure, public participation, and notice of board actions;
and a fair and expeditious determination of causes.
(b)
Construction. These rules shall not be construed so as
to enlarge, diminish, modify or alter the jurisdiction, powers, or authority
of the board or the substantive rights of any party. They shall be liberally
construed with a view towards the purpose for which they were adopted.
(c)
Computation of Time.
(1)
Computing time. In computing any period of time prescribed
or allowed by these sections, Order of the board, or any applicable statute,
the period shall begin on the day after the act, event, or default in controversy
and end on the last day of such computed period, unless it is a Saturday,
Sunday, or legal holiday, in which event the period runs until the end of
the next day which is not a Saturday, Sunday, nor a legal holiday.
(2)
Extensions. Unless otherwise provided by statute,
the time for filing any document may be extended by agreement of the parties
or order of the secretary or administrative law judge upon written verified
motion duly filed prior to the expiration of the applicable time period,
showing good cause for an extension of time and stating that the need therefor
is not caused by the neglect, indifference, or lack of diligence of the movant.
A copy of any such motion shall be served upon all other parties of record
to the proceeding contemporaneously with the filing thereof.
(d)
Agreement to be in Writing. No stipulation or agreement
between the parties, their attorneys, or representatives with regard to any
matter involved in any proceeding before the board 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 hearing, 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.
(e)
Notice of Adjudicative Hearing Proceedings.
(1)
Notice. Before revoking or suspending any registration
or denying an application for a registration, the board shall afford all
parties an opportunity for an adjudicative hearing after reasonable notice
of not less than ten days.
(2)
Content. Such 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; and
(D)
a short and plain statement of the matters asserted.
(3)
More definite statement. If the board is unable
to state the matters in detail at the time the notice is served, the initial
notice may be limited to a statement of the issues involved. Thereafter,
on a timely written application, a more definite and detailed statement must
be furnished not less than three days prior to the date set for the hearing;
however, the board shall not be required to plead its evidence in its complaint.
(f)
Conduct and Decorum. Each person, party, witness, attorney,
or other representative shall comport himself or herself in all proceedings
with proper dignity, courtesy, and respect for the board, the secretary,
the executive director, the examiner, and all other parties. Disorderly or
disruptive conduct will not be tolerated. Attorneys and other representatives
of parties shall observe and practice the standards of ethical behavior prescribed
for attorneys at law by the Texas State Bar.
(g)
Classification of Parties. Regardless of errors as to designation
of a party, parties shall be accorded their true status in the proceeding.
(h)
Parties in Interest. Any party in interest may appear in
any proceeding before the board. All appearances shall be subject to a motion
to strike upon a showing that the party has no justifiable or administratively
cognizable interest in the proceeding.
(i)
Service in Adjudicative Hearing Proceedings.
(1)
Personal service. Where personal service of notice by the
board is required, the board shall serve in person or by mailing the notice
of adjudicative hearing, certified or registered mail, return receipt requested,
to the last address filed with the board by the person entitled to receive
such notice.
(2)
Service by publication. Where personal service cannot
be made as contemplated in paragraph (1) of this subsection, then service
of notice shall be by publication of the notice of adjudicative hearing in
a newspaper of general circulation once each week for two consecutive weeks
in the county which the registrant listed as his or her mailing address;
the last publication to be at least ten days prior to the date of the hearing.
If the person is not currently practicing in Texas as evidenced by information
in the board 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 publisher's affidavit together with a copy of the published notice which
shall be introduced into the record at the hearing, or by introduction and
admission into evidence of reasonably reliable copies of the required notices
published for purposes of service.
(3)
Service of pleadings. A copy of any document filed
by any party in any proceeding subsequent to the institution thereof shall
be mailed or otherwise delivered to all other parties of record by the filing
party. If any party has appeared in the proceeding by attorney or other representative
authorized under these sections to make appearances, service shall be made
upon such attorney or other representative. The willful failure of any party
to make such service shall be sufficient grounds for the entry of an order
by the presiding officer or administrative law judge striking the document
from the record.
(j)
Appearances Personally or by Representative. Any party
may appear and be represented by an attorney at law authorized to practice
law before the highest court of this state. This right may be waived. Any
person may appear on his or her own behalf or by a bona fide full-time employee.
A corporation, partnership, or association may appear and be represented
by any bona fide officer, partner, or full-time employee.
(k)
Ex Parte Consultations. Unless required for the disposition
of ex parte matters authorized by law, members or employees of the board
assigned to render a decision or to make findings of fact and conclusions
of law in a contested case may not communicate, directly or indirectly, in
connection with any issue of fact or law, with any party or his representative
except on notice and opportunity for all parties to participate.
§194.9. Procedure - Prehearing.
(a)
Discovery. After the initiation and filing of a formal
complaint, or upon the filing of the board's initial pleading in any other
contested matter, the following discovery rules shall apply:
(1)
Preliminary Discovery. Not later than 30 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
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; and
(D)
a list of the names and last known addresses of any experts
the responding party anticipates calling to testify in its case-in-chief.
(2)
Experts. 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:
(A)
documents and tangible items which have been provided
to any expert who is expected to testify in the case;
(B)
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
(C)
a report from each expert who is anticipated to testify
in the case which generally synopsizes the expected testimony of the expert.
(3)
Inspection and Copying. Documents and tangible
items which 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. The taking and use of depositions shall
be governed by the Administrative Procedure Act 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,
or upon an order by the administrative law judge, depositions shall be conducted
and completed no later than five 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 (5) of this subsection.
(5)
Remedies and Sanctions. A failure to comply with a
discovery request to the extent required by board rule, the Medical Practice
Act, or as agreed between the parties in a discovery agreement, may be remedied
and sanctioned by ordering any or all of the following:
(A)
granting of a continuance;
(B)
limitations or restrictions on the admissibility and use
of the evidence, to include exclusion of the evidence;
(C)
payment by a party of the actual travel, lodging, 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)
imposition of a scheduling order providing for discovery
deadlines necessary to remedy the failure to comply with discovery requirements
under board rules; and
(E)
remedies and sanctions agreed to by the parties in writing
or on the record.
(6)
Good Cause. Good cause for failure to comply
with a discovery request to the extent required by law, board rule, or as
agreed 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)
an act of God or providence.
(7)
Calculation of Deadlines and Time Limits.
(A)
For purposes of discovery under board rules, deadlines
and time limits shall be based on calendar days; however, when a deadline
falls on a Saturday, Sunday, or legal holiday, the deadline shall be extended
to the next calendar day which is not a Saturday, Sunday, or legal holiday.
(B)
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 administrative
law judge and approved in whole or in part by order of the administrative
law judge. Any such approval shall provide for one or more of the following:
(i)
modified response deadlines;
(ii)
a continuance of the hearing date charged to the party
requesting discovery; or
(iii)
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.
(8)
Discovery Agreements. Discovery requirements
governing board proceedings may be modified by agreement of the parties either
on the record or in a writing signed by the parties or their representatives.
(9)
Ordered Modification of Discovery. Modification of
discovery requirements under board rules may be ordered by an administrative
law judge pursuant to an agreement of the parties or the discovery provisions
under board rules pertaining to remedies and sanctions.
(10)
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.
(11)
Final Witness List. No later than five days prior
to the date of the hearing, the parties shall exchange final lists identifying
the names and last known addresses of the witnesses each party intends to
call to testify in its case-in-chief.
(12)
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 Medical
Practice Act or other applicable law shall not constitute a waiver of any
such privilege or confidentiality requirement with respect to other such
information or material not provided.
(13)
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.
(b)
Subpoenas.
(1)
Authority. Pursuant to the Medical Practice Act, §
2.09(i), on behalf of the board, the executive director or the secretary-treasurer
of the board may issue subpoenas and subpoenas duces tecum.
(2)
Request. A party may request at any time after during
the pendency of a proceeding, including a contested case, that the board
issue a subpoena or subpoena duces tecum upon a showing of good cause; the
relevancy, and necessity of the testimony or documents; lack of undue inconvenience,
imposition, or harassment of the party required to produce the testimony
or documents; and the deposit of sums sufficient to ensure payment of expenses
incident to the subpoenas.
(A)
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.
(B)
The party requesting a subpoena duces tecum shall describe
and recite with great clarity, specificity, and particularity the books,
records, or documents to be produced.
(C)
Failure to timely comply with a subpoena issued pursuant
to the Act shall be grounds for disciplinary action by the board.
(3)
Ministerial Act. When requested by a party to
issue a subpoena or subpoena duces tecum, the board is performing a ministerial
act and shall do so in accordance with the law; however, the board shall
not be responsible for inadequacies, insufficiencies, or lack of pleading
by the requesting parties or the consequences thereof.
(4)
Service and Expenses. A subpoena issued at the request
of the staff may be served either by a board investigator or by certified
mail, return receipt requested. The board shall pay reasonable charges for
photocopies produced in response to a subpoena requested by the staff, but
such charges may not exceed those billed by the board for producing copies
of its own records.
(5)
Fees and Travel. A witness called at the request of
the board shall be paid a fee per day and reimbursed for travel in like manner
as board staff. An expert witness called at the request of the board shall
be paid a fee per day and shall be reimbursed for travel in like manner as
board members.
(c)
Show Compliance Proceeding. Pursuant to the Administrative
Procedure Act, § 2001.054, the following rules shall apply to show compliance
proceedings:
(1)
Prior to institution of board proceedings to take disciplinary
action relating to a registration, the non-certified technician shall be
given an opportunity to show compliance with all requirements of law for
the retention of a registration either in writing, or through a personal
appearance at an informal meeting with one or more representatives of the
board, at the option of the registrant.
(2)
The opportunity to show compliance under this section
shall be extended to a registrant in writing by certified mail, return receipt
requested, overnight or express mail, or registered mail, to the last mailing
address of the registrant or the registrant's attorney on file with the board.
(3)
Prior to a show compliance proceeding under this section,
the registrant shall be provided with a brief written statement of the nature
of the allegations to be addressed at the show compliance proceeding along
with a brief written statement of the grounds for disciplinary action. These
statements shall be provided to the registrant by certified mail, return
receipt requested, overnight or express mail, or registered mail to the last
mailing address of the registrant or the registrant's attorney on file with
the board. The registrant shall also be provided with written notice of the
time, date, and location of the show compliance proceeding and the rules
governing the proceeding by certified mail, return receipt requested, overnight
or express mail, or registered mail, to the last mailing address of the registrant
or the registrant's attorney on file with the board.
(4)
A registrant shall be afforded an opportunity to show
compliance with the law as provided for under this section; however, a registrant's
refusal or failure to take such an opportunity when offered, or when scheduled
with proper notice to the registrant, shall not require that an additional
show compliance opportunity be made available. In the discretion of the board's
representatives an additional show compliance opportunity may be afforded
to a registrant who refused a previous opportunity or failed to attend a
scheduled show compliance proceeding.
(5)
One or more members of the board shall conduct the
show compliance proceeding as the board's representatives. The representative
who has seniority on the board shall chair the proceeding.
(6)
The show compliance proceeding shall allow:
(A)
the board staff to present a synopsis of the allegations
and the facts which the staff reasonably believes could be proven by competent
evidence at a hearing;
(B)
the registrant to reply to the staff's presentation and
present facts the registrant reasonably believes could be proven by competent
evidence at a hearing;
(C)
presentation of evidence by the staff and the registrant
which may include medical and office records, x-rays, pictures, film recordings
of all kinds, audio and video recordings, diagrams, charts, drawings, and
any other illustrative or explanatory materials which in the discretion of
the board's representatives are relevant to the proceeding;
(D)
representation of the registrant by counsel;
(E)
presentation of oral or written statements by the registrant
or the registrant's counsel;
(F)
presentation of oral or written statements or testimony
by witnesses; and,
(G)
questioning of witnesses.
(7)
The board's representatives shall exclude from
the show compliance proceeding all persons except witnesses during their
testimony or presentation of statements, the registrant, the registrant's
attorney or representative, board members, and board staff.
(8)
During the show compliance proceeding, the board's
legal counsel or a representative of the Office of the Attorney General shall
be present to advise the board's representatives and the board's staff.
(9)
Except with the agreement of the registrant, during
the deliberations of the board's representatives at a show compliance proceeding,
the board representatives shall exclude the board staff who presented the
allegations against the registrant, the registrant's attorney or representative,
any witnesses, and the general public. The board's legal counsel or a representative
of the Office of the Attorney General shall be available to assist the representatives
in deliberations.
(10)
After a show compliance proceeding has been held,
the board staff and the board's representatives shall be subject to the ex
parte provisions of the Administrative Procedure Act with regard to contacts
with board members and administrative law judges concerning the case.
(11)
To the extent possible, board members are required
to serve as representatives at show compliance proceedings an equal number
of times during a calendar year. In the event a board member has a complaint
regarding the frequency or infrequency of service as a representative, the
complaint may be routed in writing to the Director of Hearings for the board
who shall then bring the complaint to the attention of the presiding officer
of the board for submission to the board for a resolution by a majority vote.
(12)
The show compliance proceeding may be held in conjunction
with, and simultaneously with, an informal settlement conference held pursuant
to subsection (h) of this section.
(13)
The board's representatives may call upon board staff
at any time for assistance in conducting the show compliance proceeding.
(14)
The board's representatives shall prohibit or limit
access to the board's investigative file by the registrant, the registrant's
attorney or representative, the complainant, witnesses, and the public consistent
with the Medical Practice Act, § 4.05(c).
(15)
At the conclusion of the show compliance proceeding,
the board's representatives shall make recommendations for disposition of
the allegations which may include recommendations of dismissal and closure
of the related investigation. In the event a dismissal and closure of the
investigation is not recommended, the representatives shall attempt to mediate
the disputed matters and make a recommendation regarding the disposition
of the case in the absence of a hearing under the provisions of applicable
law concerning contested cases.
(16)
The registrant may have the show compliance proceeding
recorded and reduced to writing at the registrant's expense after providing
written notice to the Director of Hearings for the board at least one day
in advance of the show compliance proceeding. Recording and transcribing
equipment shall be provided by the registrant. Efforts to mediate the disputed
matters or discussions concerning possible settlement options shall not be
recorded.
(d)
Prehearing Conferences.
(1)
Appearance. In any contested case the administrative law
judge on his or her own motion or on the motion of a party, may direct the
parties, their attorneys, or representatives to appear before him or her
at a specified time and place for a conference prior to the hearing for the
purpose of:
(A)
formulating issues;
(B)
simplifying issues;
(C)
discussing matters to be officially noticed;
(D)
discussing the possibility of making admissions of certain
averments of fact or stipulations concerning the use by either or both parties
of matters of public record, such as official records of the board, to the
end of avoiding the unnecessary introduction of proof;
(E)
ruling on any previously filed motions;
(F)
discussing the procedure at a hearing;
(G)
discussing the limitation, where possible, of the number
of witnesses; and
(H)
discussing such other matters as may aid in the simplification
of the proceedings.
(2)
Order. Action taken at the conference shall be
recorded in an appropriate Order by the administrative law judge.
(e)
Motions.
(1)
Any motion filed in a pending proceeding shall, unless
made during a hearing:
(A)
be in writing;
(B)
set forth the specific grounds and reasons therefore,
and the relief sought;
(C)
be distributed to all parties of record over a certificate
of service as outlined in §194.8(e) and (i) of this title (relating
to Procedure - General);
(D)
be filed with the administrative law judge not less than
five days prior to the hearing date;
(E)
if based on facts or matters which are not of record,
be supported by an affidavit; and
(F)
be ruled on by the administrative law judge at the prehearing
conference or at the hearing.
(2)
Motions for continuance or for dismissal of a
complaint shall:
(A)
comply with subsection (a)(1)-(6) of this section;
(B)
make reference to all prior motions of the same nature
filed in the same proceeding.
(3)
When a complaint has proceeded to its hearing
date, pursuant to the notice issued therein, no continuance or dismissal
shall be granted by the administrative law judge without the consent of all
parties involved.
(f)
Consolidated Hearings. A motion for consolidation of two
or more complaints, applications, petitions, or other proceedings shall comply
with subsection (e) of this section. Proceedings shall not be consolidated
unless the board shall find that:
(1)
the proceedings involve common questions of law and fact;
and,
(2)
separate hearings would result in unwarranted expense,
delay, or substantial injustice.
(g)
Place and Nature of Hearings. All hearings conducted in
any proceedings shall be open to the public. All hearings shall be conducted
by the State Office of Administrative Hearings in Austin, Texas.
(h)
Informal Disposition. Pursuant to the Administrative Procedure
Act, § 2001.056, the following rules shall apply to informal dispositions
of any matter relating to the non-certified technician's registration or
of any contested case.
(1)
The board may make an informal disposition of any matter
relating to the Act or of any contested case by stipulation, agreed order,
agreed settlement, consent order, or default.
(2)
In the event the board makes such a disposition of
a contested case or other matter, the disposition shall be in writing and,
if appropriate, the writing shall be signed by the registrant.
(3)
To facilitate the expeditious disposition of contested
cases, the board may provide a registrant with an opportunity to attend an
informal settlement conference. The informal settlement conference may be
held in conjunction with, and simultaneously with, a show compliance proceeding
held pursuant to subsection (c) of this section.
(4)
If the opportunity for an informal settlement conference
is provided to a registrant, the registrant shall be provided with a brief
statement of the nature of the allegations to be addressed at the conference
along with a brief statement of the provisions of the Act which may be grounds
for disciplinary action. These statements shall be provided to the registrant
by certified mail, return receipt requested, overnight or express mail, or
registered mail, to the last mailing address of the registrant or the registrant's
attorney on file with the board. The registrant shall also be provided with
written notice of the time, date, and location of the conference and the
rules governing the proceeding by certified mail, return receipt requested,
overnight or express mail, or registered mail, to the last mailing address
of the registrant or the registrant's attorney on file with the board.
(5)
One or more members of the board shall conduct the
informal settlement conference as the board's representatives. The representative
who has seniority on the board shall chair the conference.
(6)
The informal settlement conference shall allow:
(A)
board staff to present a synopsis of the allegations and
the facts which staff reasonably believes could be proven by competent evidence
at a hearing;
(B)
the registrant to reply to the board staff's presentation
and present facts the registrant reasonably believes could be proven by competent
evidence at a hearing;
(C)
presentation of evidence by the staff and the registrant
which may include medical and office records, x-rays, pictures, film recordings
of all kinds, audio and video recordings, diagrams, charts, drawings, and
any other illustrative or explanatory materials which in the discretion of
the board's representatives are relevant to the proceeding;
(D)
representation of the registrant by counsel;
(E)
presentation of oral or written statements by the registrant
or the registrant's counsel;
(F)
presentation of oral or written statements or testimony
by witnesses; and,
(G)
questioning of witnesses.
(7)
The board's representatives shall exclude from
the informal settlement conference all persons except witnesses during their
testimony or presentation of statements, the registrant, the registrant's
attorney or representative, board members, and board staff.
(8)
During the informal settlement conference, the board's
legal counsel or a representative of the Office of the Attorney General shall
be present to advise the board's representatives or the board's staff.
(9)
Except with the agreement of the registrant, during
the deliberations of an appropriate settlement, the board's representatives
at an informal settlement conference shall exclude the board staff which
presented the allegations against the registrant, the registrant's attorney
or representative, witnesses, and the general public. Legal counsel for the
board or a representative of the Office of the Attorney General shall be
available to assist the representatives in their deliberations.
(10)
After an informal settlement conference has been
held, the staff of the board and the board's representatives shall be subject
to the ex parte provisions of the Administrative Procedure Act with regard
to contacts with board members and administrative law judges concerning the
case.
(11)
To the extent possible, board members are required
to serve as representatives at informal settlement conferences an equal number
of times during a calendar year. In the event a board member has a complaint
regarding the frequency or infrequency of service as a representative, the
complaint may be routed in writing to the Director of Hearings for the board
who shall then bring the complaint to the attention of the presiding officer
of the board for submission to the board for a resolution by a majority vote.
(12)
At the informal settlement conference, the board's
representatives will attempt to mediate disputed matters, and the board's
representatives may call upon the staff at any time for assistance in conducting
the informal settlement conference.
(13)
The board's representatives shall prohibit or limit
access to the board's investigative file by the registrant, the registrant's
attorney or representative, the complainant, witnesses, and the public consistent
with the Medical Practice Act, § 4.05(c).
(14)
Although notes may be made by the participants, mechanical
or electronic recordings shall not be made of settlement discussions, mediation
efforts, or the informal settlement conference.
(15)
The settlement conference shall be informal and shall
not follow the procedures established under this title for contested cases.
(16)
At the conclusion of the informal settlement conference,
the board's representatives shall make recommendations for disposition of
the allegations which may include recommendations of dismissal and closure
of the related investigation. In the event a dismissal and closure of the
investigation is not recommended, the representatives shall make a recommendation
regarding the disposition of the case in the absence of a hearing under the
provisions of applicable law concerning contested cases. The board's representatives
may make recommendations to the registrant for resolution of the issues,
including suspension, revocation, or nonrenewal. These recommendations may
be subsequently modified by the board's representatives or staff based on
new information, a change of circumstance, or to expedite a resolution in
the interest of protecting the public. The board's representatives may also
conclude that the board lacks jurisdiction or that a violation of the board's
rules has not been established, and may recommend that the investigation
be closed or referred for further investigation. These recommendations may
be adopted, modified, or rejected by the duly convened board or through the
duly authorized actions of the board's Disciplinary Process Review Committee.
(17)
The registrant may either accept or reject the settlement
recommendations proposed by the board's representatives. If the registrant
accepts the recommendations, the registrant shall execute the settlement
agreement in the form of an Agreed Order or affidavit as soon thereafter
as is practicable. If the registrant rejects the proposed agreement, the
matter shall be referred to the board's staff for appropriate disposition
as directed by the board's representatives or the Disciplinary Process Review
Committee. The board through staff may also schedule the matter for a hearing
as described in § 194.10 of this title (relating to Procedure - Hearing).
(18)
Following acceptance and execution by the registrant
of the settlement agreement, the agreement shall be submitted to the board
for approval.
(19)
The following relate to consideration of an agreed
disposition by the board:
(A)
Upon an affirmative majority vote, the board shall enter
an Order approving the proposed settlement agreement. The Order shall bear
the signature of the presiding officer of the board at such meeting and shall
be referenced in the minutes of the board.
(B)
If the board does not approve a proposed settlement agreement,
the registrant shall be so informed and the matter shall be referred to the
staff for appropriate action to include dismissal, closure, further negotiation,
further investigation, an additional informal settlement conference, or a
hearing.
(C)
To promote the expeditious resolution of any matter relating
to the non-certified technician or of any contested case, with the approval
of the executive director of the board, or the Disciplinary Process Review
Committee of the board, board staff may present a proposed settlement agreement
to the board for consideration and acceptance without conducting an informal
settlement conference. If the board does not approve such a proposed settlement
agreement, the registrant shall be so informed and the matter shall be referred
to board staff for appropriate action to include dismissal, closure, further
negotiation, further investigation, an informal settlement conference, or
a hearing.
§194.10. Procedure - Hearing.
(a)
Presiding Officer. When the board en banc, or a committee
or panel of the board, conducts a hearing pursuant to the Medical Practice
Act, the following apply:
(1)
The hearing will be presided over by the presiding officer
of the board.
(2)
The presiding officer shall have the authority to:
(A)
administer oaths;
(B)
examine witnesses;
(C)
rule on the admissibility of evidence;
(D)
rule on motions;
(E)
rule on amendments to pleadings;
(F)
recess the hearing from day to day; and
(G)
refer the hearing to an administrative law judge at the
State Office of Administrative Hearings.
(b)
Administrative Law Judges.
(1)
Authority. When the board utilizes an administrative law
judge, such hearings shall be conducted In accordance with the Administrative
Procedure Act, the Medical Practice Act, the rules of the board, and all
other applicable law.
(2)
Duties. Except for accepting or rejecting proposed
findings of fact or conclusions of law, issuing final orders on the merits,
dismissing complaints, and making recommendations as to a registrant's discipline,
the administrative law judge shall have all the authority which the board
has regarding the conduct of hearings including, without limitation, the
following:
(A)
to hold hearings and issue notices;
(B)
to administer oaths and affirmations;
(C)
to direct all parties to enter their appearance on the
record;
(D)
to subpoena and examine witnesses;
(E)
to subpoena documents and other physical evidence;
(F)
to hold conferences before, during, or after the hearing,
to consider the matters specified in § 194.9(d) of this title (relating
to Procedure - Prehearing);
(G)
to regulate the course and conduct of the hearing including,
without limitation, setting the time and place of the hearing and/or continued
hearings; fixing the time for filing of briefs and other documents; receiving
relevant evidence; excluding evidence which is irrelevant, immaterial, repetitious,
or cumulative; ruling upon offers of proof; regulating the manner of examination
to prevent needless and unreasonable harassment, intimidation, expense, inconvenience,
or embarrassment of any witness or party at a hearing; removing disruptive
individuals; and ruling on motions;
(H)
to submit in writing to the parties, a proposal for decision
containing the elements specified in §194.11(a) of this title (relating
to Procedure - Posthearing);
(I)
to present and explain in person his or her proposal for
decision to the board for its consideration and final action; and
(J)
to dispose of any other matter that arises in the course
of a hearing and to take any action authorized by the rules of the board,
the Medical Practice Act, the Administrative Procedure Act, and all other
applicable law.
(c)
Order of Proceeding.
(1)
Hearings. In all proceedings, the petitioner, applicant,
or complainant, respectively, shall be entitled to open and close. Where
several proceedings are heard on a consolidated record, the administrative
law judge shall designate who shall open and close. The administrative law
judge in all cases shall determine whether and at what stage intervenors
shall be permitted to offer evidence. After all parties have completed the
presentation of their evidence, the administrative law judge may call upon
any party or the board staff for further material or relevant evidence upon
any issue, to be presented at further public hearing after notice to all
parties of record.
(2)
Before the board. During proceedings before the board,
en banc, the order of proceeding shall be the following:
(A)
The administrative law judge shall present his or her
proposal for decision and recommended order, explaining the items as specified
in subsection (b) of this section.
(B)
The party adversely affected shall briefly state their
reasons for being so affected, supported by the evidence of record.
(C)
The other party or parties shall be given the opportunity
to respond.
(D)
The board as complainant shall have the right to close.
(E)
The presiding officer or a member of the board may question
any party as to any matter relevant to the proceeding.
(F)
At the end of any argument by the parties, the board may
deliberate the matter in executive session, but shall vote and announce its
final decision in open meeting.
(3)
Limitation. A party shall not inquire into the
mental processes used by the board in arriving at its decision, nor be disruptive
of the orderly procedure of the board's routine.
(d)
Reporter and Transcripts.
(1)
Option. A party has the option of furnishing his or her
own stenographic reporter at his or her own expense or using the reporter
by the board. If a party elects to provide his or her own reporter, the party
shall notify the board prior to the commencement of the hearing.
(2)
Original. The original transcript shall be delivered
to the board as soon as practicable. A stenographic reporter may sell copies
of a transcript. If the respondent in the proceedings requests the original
record (statement of fact) of the testimony and evidence of a disciplinary
hearing, the costs for the original record (transcript) shall be borne by
the respondent (applicant) non-certified technician. Any subsequent copies
of the record (transcript) shall be borne by any person requesting same.
(3)
Corrections. Suggested corrections to the transcript
of the record may be offered within ten days after the transcript is filed
in the proceeding, unless the board 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 board. If suggested
corrections are not objected to, the board 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 board which shall then determine the
manner in which the record shall be changed, if at all.
(e)
Dismissal Without Hearing.
(1)
The board may entertain motions for dismissal for the following
reasons:
(A)
failure to prosecute;
(B)
unnecessary duplication of proceedings or res judicata;
(C)
withdrawal;
(D)
moot questions or stale petitions; or
(E)
lack of jurisdiction.
(2)
Such motions must meet the criteria of §194.9(e)
of this title (relating to Procedure - Prehearing).
(3)
These motions may be argued prior to the board ruling
thereon.
(f)
Evidence.
(1)
Rules. The rules of evidence as applied in nonjury civil
cases in the district courts of this state shall be followed. 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 board 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.
(2)
Objections. Objections to evidentiary offers shall
be made and shall be noted in the record. Formal exceptions to rulings of
the administrative law judge 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 administrative law judge the action which he or she
desires.
(3)
Offer of proof. If evidence is excluded from the record
by an exclusionary ruling of the administrative law judge, 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.
(4)
Office records. When subpoenaed by the board, 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 Civil Evidence, § 902(10)(b),
relating to the form of affidavits.
(5)
Documents. Subject to these requirements, if a hearing
will be expedited and the interests of the parties will not be substantially
prejudiced, any part of the evidence may be received in written form.
(A)
Copies. Documentary evidence may be received in the form
of copies or excerpts if the original is not readily available. On request,
parties shall be given an opportunity to compare the copy with the original.
When numerous documents are offered, the administrative law judge may limit
those admitted to a number which are typical and representative and may,
in his or her discretion, require the abstracting of the relevant data from
the documents and the presentation of the abstracts in the form of an exhibit;
provided, however, that before making such requirement the administrative
law judge shall require that all parties of record or their representatives
be given the right to examine the documents from which such abstracts were
made.
(B)
Prepared testimony. In all contested proceedings and after
service of copies upon all parties of record at such time as may be designated
by the administrative law judge, the prepared testimony of any witness upon
direct examination, either in narrative or question and answer form, may
be incorporated in the record as if read or received as an exhibit, upon
the witness' being sworn and identifying the same. Such witness shall be
subject to cross-examination and the prepared testimony shall be subject
to a motion to strike in whole or in part.
(6)
Official notice. Official notice may be taken
of all facts judicially cognizable and of records of the board. In addition,
notice may be taken of generally recognized facts within the area of the
agency's specialized knowledge. Parties shall be notified either before or
during the hearing or by reference in preliminary reports or otherwise, of
the material officially noticed, including any staff memoranda or data, and
the parties shall be afforded an opportunity to contest the material so noticed.
The special skills or knowledge of the board and its staff may be utilized
in evaluating the evidence.
(7)
Limitations on number of witnesses. The administrative
law judge shall have the right in any proceeding to limit the number of witnesses
whose testimony is merely cumulative.
(8)
Exhibits.
(A)
Form: Documentary exhibits shall be 8 inches by 11 inches
in length, so as to not unduly encumber the files and records of the board.
There shall be a brief statement on the first sheet of the exhibit of what
the exhibit purports to show. Exhibits shall be limited to fact material
and relevant to the issues involved in a particular proceeding.
(B)
Marking and service: The original of each exhibit offered
shall be marked sequentially for identification and tendered for inclusion
in the evidentiary record. One copy shall be furnished to the administrative
law judge and one copy to each party of record or his or her attorney or
representative.
(9)
After hearing. No exhibit will be permitted to
be filed in any proceeding after the conclusion of the hearing unless specifically
directed by the administrative law judge, presiding officer, or by the board
with copies of the late-filed exhibit served on all parties of record.
(g)
Default. If the respondent (applicant) fails to appear
in person or by legal representation on the day and at the time set for hearing
in a contested case, regardless of whether an appearance has been entered,
the administrative law judge, upon motion by board staff, shall enter a default
judgment in the matter adverse to the respondent (applicant) who failed to
attend the hearing, provided that accompanying the motion will be an affidavit
of board staff averring that in the opinion of board staff, there is legally
admissible credible evidence reasonably available to support the factual
allegations against the respondent (applicant).
§194.11. Procedure - Posthearing.
(a)
Proposals for Decision.
(1)
Elements. In addition to any other requirement of the Administrative
Procedure Act, the administrative law judge shall serve on the parties a
proposal for decision which shall contain:
(A)
a summary of the evidence adduced by each party;
(B)
a statement of the administrative law judge's reasons
for the proposed decision;
(C)
findings of fact expressed in clear, concise factual terms,
neither summarizing nor reciting the evidence. Findings of fact must be based
explicitly on the evidence and on matters officially noticed;
(D)
conclusions of law necessary to the proposed decision;
(E)
a listing and explanation of all mitigating and aggravating
circumstances necessary to a complete understanding of the case by the board;
and
(F)
recommended disposition or discipline.
(2)
Service. When a proposal for decision is prepared,
a copy of the proposal shall be served forthwith by the administrative law
judge on each party, his or her attorney of record or representative, and
the board. Service of the proposal for decision shall be in accordance with
§194.8(i) of this title (relating to Procedure - General).
(3)
Statutory statement. If findings of fact are stated
in statutory language, each finding must be accompanied by a concise and
explicit statement of the facts supporting the finding.
(4)
Proposed findings. Only when the administrative law
judge requests a party or parties to submit findings of fact will it be necessary
for the administrative law judge to rule on each proposed finding in the
recommended order.
(b)
Exceptions and Replies.
(1)
Entitlement. Any party of record who is aggrieved by the
administrative law judge's proposal for decision shall have the opportunity
to file exceptions to the proposal for decision within 20 days from the date
of service of the proposal for decision. Replies to the exceptions may be
filed by other parties within ten days of the filing of the exceptions. Exceptions
and replies shall be filed with the administrative law judge. Any extensions
of time shall be as provided by §194.8(c) of this title (relating to
Procedure - General).
(2)
Content. Each exception or reply to a finding of fact
shall be stated concisely and shall summarize the evidence in support thereof.
Arguments shall be logical and citations to authorities shall be complete.
(3)
Briefs. Briefs shall be filed only when requested
or permitted by the board, presiding officer, administrative law judge.
(4)
Service. Exceptions and replies shall be served upon
every party of record by the filing party pursuant to § 194.8(i) of
this title (relating to Procedure - General).
(c)
Oral Argument. Any party may request oral argument prior
to the final determination of any proceeding, but oral argument shall be
allowed only in the sound discretion of the board. A request for oral argument
may be incorporated in exceptions, briefs, replies to exceptions, motions
for rehearing, or in separate pleadings.
(d)
Final Decisions and Orders.
(1)
Board action. The proposal for decision may be acted on
by the board upon the expiration of ten days after the filing of replies
to exceptions to the proposal for decision. Parties shall be notified either
personally or by mail of any decision or order. On written request, a copy
of the decision or order shall be delivered or mailed to any party and to
his or her attorney of record.
(2)
Recorded. All final decisions and orders of the board
shall be in writing or stated in the record and shall be signed by the presiding
officer of the board. A final order shall include findings of fact and conclusions
of law, separately stated.
(3)
Imminent peril. If the board finds that an imminent
peril to the public health, safety, or welfare requires immediate effect
of a final decision or order in a contested case, it shall recite that finding
in the decision or order as well as the fact that the decision or order is
final and effective on the date rendered, in which event the decision or
order is final and appealable on the date rendered and no motion for rehearing
is required as a prerequisite for appeal.
(4)
Changes to Recommendation. To protect the public interest
and ensure that sound principles govern the decisions of the board, it shall
hereafter be the policy of the board to change a finding of fact or conclusion
of law or to vacate or modify the proposed order of an administrative law
judge when the proposed order is:
(A)
erroneous;
(B)
against the weight of the evidence;
(C)
based on unsound medical principles;
(D)
based on an insufficient review of the evidence;
(E)
not sufficient to protect the public interest; or
(F)
not sufficient to adequately allow rehabilitation of the
non-certified technician.
(5)
Amended order. If the board modifies, amends,
or changes the hearing examiner's or the administrative law judge's recommended
order, an order shall be prepared reflecting the board's changes as stated
in the record.
(6)
Administrative finality. A final order or board decision
is administratively final:
(A)
upon a finding of imminent peril to the public health,
safety, or welfare as outlined in paragraph
(3)
of this subsection;
(B)
when absent the filing of a timely motion for rehearing
upon the expiration of 20 days from the date the final order or board decision
is entered; or
(C)
when a timely motion for rehearing is filed and the motion
for rehearing is overruled by board order or operation of law as outlined
in subsection (e) of this section.
(7)
Rendering of final decision or order. The final
decision or order must be rendered within 60 days after the date the hearing
is finally closed. In a contested case heard by an administrative law judge,
an extension of time for the issuing of a proposal for decision may be announced
at the conclusion of the hearing.
(e)
Motions for Rehearing.
(1)
Filing Times. A motion for rehearing must be filed within
20 days after a party has been notified, either in person or by mail, of
the final decision or order of the board.
(2)
Board Action. Action by the board on the motion must
be taken within 45 days after the date of rendition of the final decision
or order. If board action is not taken within the 45-day period, the motion
for rehearing is overruled by operation of law 45 days after the date of
rendition of the final decision or order. The board may, by written order,
extend the period of time for filing the motions and replies and taking board
action, except that an extension may not extend the period for board action
beyond 90 days after the date of rendition of the final decision or order.
In the event of an extension, the motion for rehearing is overruled by operation
of law on the date fixed by the order, or in the absence of a fixed date,
90 days after the date of the final decision or order. The parties may, by
agreement, with the approval of the board, provide for a modification of
the times provided in this section.
(f)
The Record. The record in a contested case shall include:
(1)
all pleadings, motions, and intermediate rulings;
(2)
evidence received or considered;
(3)
a statement of matters officially noticed;
(4)
questions and offers of proof, objections, and rulings
on them;
(5)
proposed findings of fact, conclusions of law, exceptions,
and replies;
(6)
any decision, opinion, or report by the officer presiding
at the hearing; and
(7)
all staff memoranda, correspondence from parties,
or other data submitted to or considered by the administrative law judge
or members of the agency who are involved in making the decision.
(g)
Costs of Appeal. A party appealing a final decision of
the board in a contested case may be ordered by the board to pay all or a
part of the cost of preparation of the original or a certified copy of the
record of the proceeding that is required to be transmitted to the reviewing
court.
§194.12. Construction.
The provisions of this chapter shall be construed and interpreted so
as to be consistent with the statutory provisions of the Medical Practice
Act. In the event of a conflict between this chapter and the provisions of
the Medical Practice Act, the provisions of the Medical Practice Act shall
control; however, this chapter shall be construed so that all other provisions
of this chapter which are not in conflict with the Act shall remain in effect.
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.
Issued in Austin, Texas, on January 22, 1997.
TRD-9700987
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 305-7016