The Texas Board of Veterinary Medical Examiners (Board) proposes an amendment to §575.35, concerning Temporary License Suspension Proceedings.

Proposed §575.35 is amended so that the procedures for temporary license suspension 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.

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. 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 and subject to a temporary license suspension, 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 and with the business interruption caused by a license suspension, 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 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, and will be protected through the Board's temporary license suspension proceedings from licensees, including equine dental providers, who constitute an imminent or continuing threat to the public welfare.

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; and §801.409, which states that the Board by rule shall adopt procedures for the temporary suspension of a license.

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

§575.35.Temporary License Suspension Proceedings.

(a) Annually, the president of the Board shall appoint a three-member executive disciplinary committee (EDC) consisting of the president, the Board secretary, and one public member, to determine whether a person's license to practice veterinary medicine or equine dentistry in this state should be temporarily suspended under the Occupations Code, §801.409. The president shall serve as the chairman of the EDC, except in their absence the Board secretary shall serve as chairman. If a member of the EDC is recused, or a member is unable to attend the EDC's meeting, an alternate Board member may serve in the member's place on the EDC if the alternate was previously appointed by the president of the Board and approved by the Board.

(b) The EDC shall meet to receive information on a complaint indicating that a licensee's continued practice of veterinary medicine or equine dentistry may constitute a continuing or imminent threat to the public welfare. At the conclusion of the meeting, if the EDC concludes that the licensee's continued practice would constitute a continuing or imminent threat to the public welfare, the EDC shall suspend the licensee's license for a temporary, stated period of time.

(c) In accordance with the APA, Section 2001.081, the determination of the EDC may be based not only on evidence admissible under the Texas Rules of Evidence, but may be based on information of a type on which a reasonably prudent person commonly relies in the conduct of the person's affairs.

(d) In receiving information on which to base its determination of a continuing threat to the public welfare, the EDC may accept the testimony of witnesses by telephone.

(e) The EDC and the EC may receive testimony and evidence in oral or written form. Written statements may be sworn or unsworn. The committee members may question witnesses at the members' discretion. Evidence or information that is clearly irrelevant, unreliable, or unduly inflammatory will not be considered.

(f) The EDC may suspend a license under this section without notice or a hearing on the complaint, provided the Board's enforcement committee (EC) (established pursuant to §575.29(b) of this title (relating to Informal Conferences)) shall meet in an informal conference within 14 days of the date of suspension, to determine if formal disciplinary proceedings should be initiated against the licensee. The licensee must receive notice of the conference at least 72 hours prior to the conference.

(g) Following the informal conference, the EC shall take one of the following actions:

(1) Lift the temporary suspension and reinstate the license without conditions.

(2) Negotiate with the licensee an agreed settlement order that will lift the suspension, continue the suspension, or impose other sanctions as appropriate. The agreed order would be presented to the next available Board meeting for adoption.

(3) Prepare a complaint affidavit setting out the details of the complaint and recommended sanctions, and forward the complaint affidavit to the State Office of Administrative Hearings for setting of an administrative hearing. Following the hearing, the administrative law judge will prepare a proposal for decision for adoption, in the form of an order, by the Board.

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-201200575

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