The Texas Board of Veterinary Medical Examiners (Board) proposes an amendment to §575.29, concerning Informal Conferences.

Proposed §575.29 is amended to allow any member of Board staff to investigate a complaint in order to give the Director of Enforcement more latitude in assigning investigation duties by allowing her to assign complaint investigations to administrative staff, as well as to investigators on staff, depending on the complexity of the case.

Proposed §575.29 is also amended to clarify that the licensee board members that represent the Board at the informal conference are veterinarians, and not equine dental providers. This 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. The Legislature did not change the composition of the Board as set by Texas Occupations Code §801.051, which states that the Board is composed of six veterinarians and three members representing the public. Thus, it is necessary to change the phrase "licensee board member" in the rule to "veterinary licensee board member," to ensure that there is no confusion should a equine dental provider licensee become a public member of the Board. This change is not intended to alter the meaning of the rule.

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, the proposed change to allow the Director of Enforcement to assign uncomplicated complaint investigations to administrative staff will reduce cost to state government by reducing the workload on Board investigators. Ms. Oria does not anticipate any economic impact as a result of the clarification regarding veterinarian board members. 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 also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be that the Board will be able to investigate complaints from public more quickly, because the ability to assign simple case investigations to administrative staff rather than investigators should allow all cases to progress through the investigation process more efficiently and reduce the agency's backlog of investigations. Ms. Oria has determined that there will be no economic cost to individuals required to comply with the rule. Ms. Oria has determined that there will be no measurable effect on small businesses and micro businesses. There is no anticipated difference in cost of compliance between small and large businesses.

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; §801.151(c)(1), which states that the Board shall adopt rules to protect the public; §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; and §801.408, which states that the Board shall by rule adopt procedures governing informal proceedings in contested cases.

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

§575.29.Informal Conferences.

(a) The informal conference is the last stage in the investigation of a complaint. The licensee has the right to waive his or her attendance at the conference. The licensee may be represented by counsel.

(b) The Board [ board ] may be represented at the informal conference by an enforcement committee of the executive director, the veterinarian members and a public member of the board, the director of enforcement, the member of board staff [ investigator ] assigned to investigate the complaint, and the Board's [ board's ] general counsel. 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.

(c) Contingency. The Board [ board ] president shall appoint another veterinary licensee board member to assume the duties of the board secretary in the complaint review and informal conference process in the event the board secretary is unable to serve in the capacity set out in this section.

(d) Procedure. 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 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 enforcement committee members may ask questions of the licensee and complainant in order to fully develop the complaint record.

(e) At the conclusion of the informal conference, the enforcement committee shall determine if a violation has occurred. If the enforcement committee determines that a violation has not occurred, the enforcement committee, or their designee, will dismiss the complaint, and will advise all parties of the decision and the reasons why the complaint was dismissed.

(f) If the enforcement committee determines that a violation has occurred and that disciplinary action is warranted, the executive director, or their designee, 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 enforcement 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 executive director, or their designee, 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.

(g) Within the time period prescribed, the licensee must submit a written response to the Board:

(1) accepting the settlement offer and recommended disciplinary action, or

(2) requesting a hearing before an administrative law judge.

(h) Additional negotiations may be held between board staff and the licensee or the authorized representative. In consultation with the board representatives, as available, the recommendations of the board representatives may be subsequently modified based on new information, a change of circumstances, or to expedite a resolution in the interest of protecting the public.

(i) The board representative(s) shall be consulted and must concur with any subsequent substantive modifications before any recommendations are sent to the full board for approval.

(j) Board staff may communicate directly with the board representative(s) after the ISC for the purpose of discussing settlement of the case.

(k) If the licensee accepts the settlement offer by signing the agreed order, the agreed order will be docketed for board action at the next regularly scheduled board meeting.

(l) The recommendations may be adopted, modified, or rejected by the Board [ board ].

(m) If the Board [ board ] approves the agreed order with amendments, the executive director, or their designee, shall mail the amended agreed order to the licensee and the licensee shall have fourteen (14) days from receipt to accept the amended agreed order by signing and returning it to the Board [ board ]. If a licensee does not sign an amended agreed order or does not respond within the fourteen (14) days, the complaint will be scheduled for a hearing before an administrative law judge. If the Board [ board ] rejects the agreed order, the complaint may be scheduled for a hearing before an administrative law judge, or the Board [ board ] may direct the executive director to take other appropriate action.

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-201200574

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