Section 167.2 - Procedure for Requests for ReinstatementPursuant to the Medical Practice Act, §§ 154.006, 164.003 and 164.151-.154, and the Administrative Procedure Act, Government Code, § 2001.056, the following rules shall apply to dispositions of any requests for reinstatement of a medical license following suspension.
(1) The board may make a disposition of any request for reinstatement of a medical license following suspension by stipulation, agreed order, agreed settlement, consent order, or default.(2) In the event the board makes such a disposition of a request for reinstatement of a medical license following suspension, the disposition shall be in writing and, if appropriate, the writing shall be signed by the applicant.(3) To facilitate the expeditious disposition of requests for reinstatement following suspension, the board may provide an applicant with an opportunity to attend a probationer show compliance proceeding in accordance with § 187.44 of this title (relating to Probationer Show Compliance Proceedings).(4) In accordance with § 187.44 of this title (relating to Probationer Show Compliance Proceedings) an applicant for reinstatement shall be provided with written notice of the time, date, and location of the probationer show compliance proceeding and the rules governing the proceeding by certified mail - return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the applicant or the applicant's attorney on file with the board.(5) The probationer show compliance proceeding shall allow:(A) the board staff to address whether it is in the best interest of the public and the physician to return to the practice of medicine by presenting a synopsis of the allegations and the basis of the suspension of the applicant's medical license, the facts which the board staff reasonably believes could be proven by competent evidence at a hearing, and whether the applicant has complied with the terms and conditions of the order suspending his license if applicable;(B) the applicant to reply to the board staff's presentation and present facts the applicant reasonably believes could be proven by competent evidence at a hearing;(C) presentation of evidence by the staff and the applicant which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board's representative(s) are relevant to the proceeding;(D) representation of the applicant by counsel;(E) presentation of oral or written statements by the applicant or the applicant's counsel;(F) presentation of oral or written statements or testimony by witnesses; and,(G) questioning of witnesses.(6) The board's representative(s) shall exclude from the probationer show compliance proceeding all persons except witnesses during their testimony or presentation of statements, the applicant, the applicant's attorney or representative, board members, district review committee members, and board staff.(7) During the probationer show compliance proceeding, the board's legal counsel shall be present to advise the board's representative(s) or the board's employees.(8) During the deliberations of an appropriate settlement, the board's representative(s) at a probationer show compliance proceeding shall exclude the applicant, the applicant's attorney or representative, any witnesses, and the general public. A board legal counsel and board staff shall be available to assist the representative(s) in their deliberations.(9) At the probationer show compliance proceeding the board's representative(s) will attempt to mediate disputed matters, and the board's representative(s) may call upon the board staff at any time for assistance in conducting the proceeding.(10) The board's representative(s) shall prohibit or limit access to the board's investigative file by the applicant, the applicant's attorney or representative, any witnesses, and the public consistent with the Medical Practice Act, § 164.007.(11) At the conclusion of the probationer show compliance proceeding, the board's representative(s) shall make recommendations for disposition of the request for reinstatement which may include deferral pending receipt of additional information, denial of the request, or in accordance with board rule § 187.43 of this title (relating to Proceedings for the Modification/Termination of Agreed Orders and Disciplinary Orders), a modification or termination of the agreed or disciplinary order under which the suspension was originally granted. The board's representative(s) may make recommendations to the applicant for resolution of the issues. Such recommendations may include any reasonable restrictions authorized by the Act and any other remedial actions in the public interest. These recommendations may be subsequently modified by the board's representative(s) or staff based on new information, a change of circumstance, or to expedite a resolution in the interest of protecting the public. These recommendations may be adopted, modified, or rejected by the duly convened board or through the duly authorized actions of the board's Disciplinary Process Review Committee.(12) The applicant may either accept or reject the settlement recommendations proposed by the board's representative(s). If the applicant accepts the recommendations, the applicant shall execute the settlement agreement in the form of an agreed order or affidavit as soon thereafter as is practicable. If the applicant rejects the proposed agreement, the applicant shall be given the option of requesting a formal hearing. If the applicant requests a formal hearing, the matter shall be referred to the board's staff for hearing, as described in Chapter 187, Subchapter C of this title (relating to Formal Proceedings at SOAH).(13) Following acceptance and execution by the applicant of the settlement agreement, the agreement shall be submitted to the board for approval.(14) The following as stated in subparagraphs (A)-(C) of this paragraph relate to consideration of an agreed disposition by the board. (A) Upon an affirmative majority vote, the board shall enter an order approving the proposed settlement agreement. The order shall bear the signature of the president of the board or of the officer presiding at such meeting and shall be referenced in the minutes of the board.(B) If the board does not approve a proposed settlement agreement, the applicant shall be so informed and the matter shall be referred to the board staff for appropriate action to include further negotiation, further investigation, an additional probationer show compliance proceeding or a formal hearing.(C) To promote the expeditious resolution of any request for reinstatement, with the approval of the executive director, a member of the Executive Committee, or the Disciplinary Process Review Committee, board staff may present a proposed settlement agreement to the board for consideration and acceptance without conducting a probationer show compliance proceeding. If the board does not approve such a proposed settlement agreement, the applicant shall be so informed and the matter shall be referred to the board staff for appropriate action to include further negotiation, further investigation, a probationer show compliance proceeding or a hearing.22 Tex. Admin. Code § 167.2
The provisions of this §167.2 adopted to be effective September 15, 1997, 22 TexReg 8997; amended to be effective October 17, 2001, 26 TexReg 8069; amended to be effective April 27, 2003, 28 TexReg 3324