The Texas Board of Chiropractic Examiners adopts an amendment to §76.1, the repeal of §§76.3-76.6 and new §§76.3, 76.5, 76.7, 76.9, 76.11, 76.13, 76.15, 76.17, 76.19, concerning Investigations. Sections 76.1, 76.3-76.6 (repeals), 76.3, 76.5, 76.7, 76.9, 76.11, 76.15 and 76.17 are adopted without changes to the proposed text as published in the February 11, 2000, issue of the Texas Register (25 TexReg 1024) and will not be republished. Section 76.13(b) and §76.19(a) are adopted with minor changes to the proposed text as published in the February 11, 2000, issue of the Texas Register (25 TexReg 1024) and the text will be republished. The only changes made were grammatical and punctuation changes in §76.13(b) and §76.19(a). Chapter 75 of the board's rules partially covers the same subject matter of the current §§76.4-76.6. These sections, therefore, have been merged with revisions to chapter 75. Section 76.3, relating to release of patient records and other information from licensees, has been transferred to chapter 80 as §80.3. These changes are made in conjunction with the board's review of chapter 75, which covers complaint and disciplinary matters, and chapter 80, which contains miscellaneous provisions. These amendments to chapters 75 and 80 are published elsewhere in this issue of the Texas Register . The adopted rule review of Chapters 75 and 80 were published in the February 11, 2000, issue of the Texas Register (25 TexReg 1156).

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

The chapter as revised will provide better notice to licensees and the public of procedures and requirements relating to licensure and disciplinary hearing matters. The purpose of these rules is to provide notice of board policy and to set out necessary procedures within the board's jurisdiction as well as to give notice generally of each step in the complaint resolution and disciplinary process. Chapter 76, along with the amendments to chapter 75, are designed to complement SOAH rules and the APA, providing procedures for matters not covered by SOAH rules or the APA or for which jurisdiction resides, entirely or partially, with the board.

One comment was received on §76.13(e) from the Comptroller of Public Accounts. Section 76.13(e) covers reimbursement of expenses for witnesses in a contested case. Subsection (e) refers to the APA §2001.103 and the Comptroller's travel allowance guide for state employees in determining the rate of reimbursement. The Comptroller suggested referencing the appropriations act rather than the guide since the guide does not expressly address witness reimbursement. The APA §2001.103(d) sets the maximum rate of reimbursement for witness expenses to that paid to state employees. The guide sets out the rates for state employees, as authorized by the appropriations act, and it is for that reason that the guide is referenced in §76.13(e). The board believes the section is sufficiently clear to indicate the legal sources for determining maximum reimbursement rates. The board will be responsible for making these determinations and thus, will ensure that the proper legal rates are applied. Accordingly, the board does not believe revision to the subsection is necessary.