The Texas Board of Veterinary Medical Examiners (Board) proposes an amendment to §575.27, concerning Complaints--Receipts.

Proposed §575.27 is amended to make the Board's procedure for receiving complaints and initiating investigations apply to all 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.

Proposed §575.27 is also amended to limit the length of time a complaint can be filed after the incident that is the subject of the complaint occurs, or could have been discovered, to four years. This limitation is intended to parallel the Board's requirement that licensees keep patient records for five years, because patient records usually play a key role in the Board's investigation of a complaint. The four year limitation will ensure that the Board does not expend its limited resources attempting to investigate complaints for which key evidence--the relevant patient record--no longer exists.

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 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. The proposed limitation on how long after an incident a complaint can be filed will reduce cost to state government by eliminating the investigation costs for any complaints filed more than four years after the date the basis of the complaint was discovered or could have been discovered. Although the Board receives on average fewer than five such complaints per year, the investigation of complaints brought after the licensee no longer has an obligation to keep the relevant patient records requires more agency resources per case and yields less conclusive results, due to the "he said, she said" nature of the evidence that remains when patient records are no longer available. 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 are disciplined by the Board will experience economic cost increases 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 and disciplinary fines, 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 methods. The proposed amendments 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 will be that the public will be able to rely on the training and quality of service from the regulation of licensed equine dental providers, 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, and will have their complaints that are filed within four years of the incident in question investigated more efficiently. Moreover, scarce agency resources will be used more efficiently on more recent complaints.

The Texas Board of Veterinary Medical Examiners invites comments on the proposed amendment to the rule 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, §801.151(c)(1), which states that the Board shall adopt rules to protect the public, and §801.205, which states that the Board shall adopt rules relating to the investigation of complaints filed with the Board, including rules to ensure that complaints are not dismissed without appropriate consideration.

Occupations Code, Chapter 801, is affected by this proposal.

§575.27.Complaints--Receipt.

(a) Complaints against licensees.

(1) All complaints filed by the public against Board licensees must be in writing on a complaint form provided by the Board [ board ] and signed by the complainant. The Board-approved complaint form can be obtained free of charge from the Board office or downloaded from the Board's website at http://www.tbvme.state.tx.us. If a complaint is transmitted to the Board orally or by means other than in writing and the complaint alleges facts showing a continuing or imminent threat to the public welfare, the requirement of a written complaint may be waived until later in the investigative process.

(2) The Board may file a complaint on its own initiative.

(3) Complaints by the Board's [ Board ] enforcement section shall be initiated by the opening of a complaint file.

(4) Anonymous written complaints will normally not be investigated, but may be investigated if sufficient information exists for the Board to file a complaint under paragraph (2) of this subsection.

(5) The Board shall utilize violation code numbers to distinguish between categories of complaints.

(6) The Board may not consider a complaint that is filed with the Board after the fourth anniversary of the date:

(b) Complaints against non-licensees. Complaints against persons alleged to be practicing veterinary medicine or equine dentistry without a license may be investigated and resolved informally by the executive director with the consent of the non-licensee, or the Board may utilize formal cease and desist procedures specified in §801.508, Occupations Code. Complaints not resolved by the executive director may be referred to a local prosecutor or the attorney general for legal action, as well as addressed in §801.508 of the Occupations Code.

(c) Report to the Board of dismissed complaints. The executive director or the executive director's designee shall advise the Board at each scheduled meeting of the complaints dismissed since the last meeting.

(d) 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 or equine dentistry without a license. Private investigators will be utilized in accordance with existing purchasing rules of the Comptroller of Public Accounts.

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-201200573

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