The Texas Board of Veterinary Medical Examiners (Board) proposes an amendment to §575.8, concerning Final Decisions and Orders.
The proposed amendment to §575.8 is intended to make the Board's procedure for final orders in contested cases apply to all Board licensees, veterinarians and equine dental providers alike. The proposed amendment is necessitated by House Bill (HB) 414, 82nd Legislative Session, which gave the Board the authority to license and regulate equine dental providers.
Nicole Oria, Executive Director, Texas Board of Veterinary Medical Examiners, has determined that for each year of the first five years that the proposed rule is in effect, there will be minimal increased cost to state government required to enforce the rule for licensed equine dental providers, but those costs will be offset by the reduction in cost of the amounts the Board previously spent on enforcing the unlicensed practice of veterinary medicine by unlicensed equine dentists. Ms. Oria does not anticipate any fiscal implications for local government as a result of the proposed rule. Moreover, Ms. Oria has determined that there will be no local employment impact as a result of adoption of the proposed rule.
Ms. Oria has determined that some equine dental providers, including micro-businesses operating as equine dental provider practices, who become involved in the Board's disciplinary process will experience a minor economic cost increase associated with complying with the proposed rule for each year of the first five years that the rule is in effect, due to the costs associated with the Board's disciplinary process, but the legal employment and advertising opportunities that come with licensure should outweigh these costs. The Board estimates that there are approximately 30 equine dental provider micro-businesses in Texas. The proposed rules regarding equine dental providers are necessary to implement HB 414, which required that equine dental providers be licensed and regulated by the Board. In HB 414, the Texas Legislature itself set many of the parameters that are creating costs for equine dental providers under the proposed rule revisions including, but not limited to, the requirement that equine dental providers uphold the same standard of care as licensed veterinarians. Thus, the Board determined that there are no legal and feasible alternatives or other less expensive methods of regulating and disciplining licensed equine dental providers than through the Board's established disciplinary process. The proposed amendment will not cause any increased costs for licensed veterinarians.
Ms. Oria has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit is that the public will be able to rely on the training and quality of service from the regulation of licensed equine dental providers, and will have a venue and process through which to complain and seek discipline for a licensed equine dental provider who violates the Board's rules.
The Texas Board of Veterinary Medical Examiners invites comments on the proposed amendment from any member of the public. A written statement should be mailed or delivered to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Ste. 3-810, Austin, Texas 78701-3942, by facsimile (FAX) to (512) 305-7574, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.
The amendment 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, and §801.151(c)(1), which states that the Board shall adopt rules to protect the public.
Occupations Code, Chapter 801, is affected by this proposal.
§575.8.Final Decision and Orders.
(a) Board action. A copy of the final decision or order shall be delivered or mailed to any party and to the attorney of record.
(b)
Recorded. All final decisions and orders of the
Board
[
board
] shall be in writing and shall be signed
by the president, vice-president, or secretary and reported in the
minutes of the meeting. A final order shall include findings of fact
and conclusions of law, separately stated.
(c)
Imminent peril. If the
Board
[
board
]
finds that imminent peril to the public's health, safety, or welfare
requires immediate effect of a final decision or order in a contested
case, it shall recite the 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.
(d) Changes to findings of fact and conclusions of law.
(1)
Reasons to Change Findings of Fact and Conclusions
of Law. The
Board
[
board
] is charged by the
legislature to protect the public interest, is an independent agency
of the executive branch of the government of the State of Texas, and
is the primary means of licensing, regulating and disciplining veterinarians
and equine dental providers
. Therefore, to ensure that sound
veterinary medical principles govern the decisions of the
Board
[
board
], it is the policy of the
Board
[
board
]
to change a finding of fact or conclusion of law or to vacate or modify
any proposed order of an ALJ only when the
Board
[
board
]
determines:
(A)
that the ALJ did not properly apply or interpret
applicable law,
Board
[
board
] rules, written
policies, or prior administrative decisions;
(B)
that a prior administrative decision on which the
ALJ relied is incorrect or should be changed; or[
;
]
(C) that a technical error in a finding of fact should be changed.
(2)
Recommendations regarding the appropriate sanction.
Section 801.456(a) of the Veterinary Licensing Act requires that,
after receiving the ALJ's findings of fact and conclusions of law,
the
Board
[
board
] may determine that a violation
occurred and impose an administrative penalty. The
Board
[
board
] interprets this requirement as imposing on the
Board
[
board
] the responsibility of assessing the proper sanction.
While the
Board
[
board
] welcomes the recommendations
of ALJs regarding the appropriate sanction, the
Board
[
board
] does not consider the findings of fact and conclusions of
law to be appropriate for stating such recommendations. Therefore,
sanction recommendations in the form of findings of fact and conclusions
of law are considered to be an improper application of applicable
law and these rules.
(3)
Changes Stated in Final Order. If the
Board
[
board
] modifies, amends, or changes the ALJ's proposed findings
of fact or conclusions of law, an order shall be prepared reflecting
the specific reason and legal basis for each change made.
(e)
Administrative finality. A final order or
Board
[
board
] decision is administratively final:
(1) upon a finding of imminent peril to the public's health, safety or welfare, as outlined in subsection (c) of this section;
(2)
when no motion for rehearing has been filed within
20 days after the date the final order or
Board
[
board
]
decision is entered; or
(3)
when a timely motion for rehearing is filed and
the motion for rehearing is denied by
Board
[
board
]
order or operation of law as outlined in §575.9 of this title
(relating to Motions for Rehearing).
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 3, 2012.
TRD-201200569
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Earliest possible date of adoption: March 18, 2012
For further information, please call: (512) 305-7563