A look at the Texas Medical Practice Act

...particularly Sections 164.004 and 164.005.

Here is an audio file of my discussion of violations of the Medical Practice Act by the Texas Medical Board:


http://www.mediafire.com/?o0mjwmgmitw

(If your media player won't play this file, use VLC Media Player)


§164.003. Informal Proceedings (State Office of Administrative Hearings [SOAH] is the corresponding 'formal proceeding')
(a) The board by rule shall adopt procedures governing:

(1) informal disposition of a contested case under Section 2001.056, Government Code; and

(2) informal proceedings held in compliance with Section 2001.054, Government Code.

(b) Rules adopted under this section must require that:

(1) an informal meeting in compliance with Section 2001.054,1 Government Code (this is the "Texas Administrative Code"), be scheduled not later than the 180th day after the date the complaint is filed with the board under Section 154.051, unless good cause is shown by the board for scheduling the informal meeting after that date;

(2) the board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held;

(3) the complainant (The board does not allow the doctor and complainant to meet.) and the license holder be provided an opportunity to be heard;

(4) the board’s legal counsel or a representative of the attorney general be present to advise the board or the board’s staff; and

(5) a member of the board’s staff at the meeting present to the board’s representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(c) An affected physician is entitled to:

(1) reply to the staff’s presentation; and

(2) present the facts the physician reasonably believes the physician could prove by competent evidence or qualified witnesses at a hearing.

(d) After ample time is given for the presentations, the board representative shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.

(e) If the license holder has previously been the subject of disciplinary action by the board, the board shall schedule the informal meeting as soon as practicable but not later than the deadline prescribed by Subsection (b)(1).



§164.0035. Dismissal of Baseless Complaint

If, during the 180-day period prescribed by Section 164.003(b)(1), the board determines that the complaint is a baseless or unfounded complaint, the board shall dismiss the complaint and include a statement in the records of the complaint that the reason for the dismissal is because the complaint was baseless or unfounded. The board shall adopt rules that establish criteria for determining that a complaint is baseless or unfounded.

We need to know what these criteria are.

§164.004. Compliance With Due Process Requirements

(a) Except in the case of a suspension under Section 164.059 or under the terms of an agreement between the board and a license holder, a revocation, suspension, involuntary modification, or other disciplinary action relating to a license is not effective unless, before board proceedings are instituted:
(1) the board gives notice, in a manner consistent with the notice requirements under Section 154.053, to the affected license holder of the facts or conduct alleged to warrant the intended action; and



(2) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license, at the license holder’s option, either in writing or through personal appearance at an informal meeting with one or more representatives of the board.



(b) If the license holder chooses to personally appear and an informal meeting is held, the board’s staff and the board’s representatives are subject to the ex parte provisions of Chapter 2001, Government Code, with regard to contacts with board members and administrative law judges concerning the case.

§164.005. Initiation of Charges; Formal Complaint
(a) In this section, “formal complaint” means a written statement made by a credible person under oath that is filed and presented by a board representative charging a person with having committed an act that, if proven, could affect the legal rights or privileges of a license holder or other person under the board’s jurisdiction.

This is analogous to a "probable cause affidavit" in criminal law. The fact that the analogy is made might make it feasible to use "the rights of the accused in criminal prosecutions" clause in the US Constitution: to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.


(b) Unless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board.

(c) A charge must be in the form of a written affidavit that: This is what we need, but it is not done! TMB should keep those affidavits on file and make them subject to review by the legislative oversight committees

(1) is filed with the board’s records custodian or assistant records custodian; and I want to see the affidavit and the complaint filed against me which precipitated my license suspension; there wasn't one!

(2) details the nature of the charge as required by this subtitle or other applicable law.

(d) The board president or a designee shall ensure a copy of the charges is served on the respondent or the respondent’s counsel of record.

(e) The president or designee shall notify the State Office of Administrative Hearings of a formal complaint.

(f) A formal complaint must allege with reasonable certainty each specific act relied on by the board to constitute a violation of a specific statute or rule. The formal complaint must be specific enough to:

(1) enable a person of common understanding to know what is meant by the formal complaint; and

(2) give the person who is the subject of the formal complaint notice of each particular act alleged to be a violation of a specific statute or rule.

(g) The board shall adopt rules to promote discovery by each party to a contested case.



§164.006. Service of Notice

(a) Service of process to notify the respondent of a hearing about the charges against the person must be served in accordance with Chapter 2001, Government Code.

(b) If service described by Subsection (a) is impossible or cannot be effected, the board shall publish once a week for two successive weeks a notice of the hearing in a newspaper published in the county of the last known place of practice in this state of the person, if known.

(c) If the license holder is not currently practicing in this state as evidenced by information in the board files, or if the last county of practice is unknown, the notice shall be published in a newspaper in Travis County.

(d) If publication of notice is used, the date of hearing may not be earlier than the 10th day after the date of the last publication.



§164.007. Administrative Hearings; Confidentiality Issues

(a) The board by rule shall adopt procedures governing formal disposition of a contested case under Chapter 2001, Government Code. A formal hearing shall be conducted by an administrative law judge employed by the State Office of Administrative Hearings. After receiving the administrative law judge’s findings of fact and conclusions of law, the board shall determine the charges on the merits.

(b) Notwithstanding this subtitle or other law, the board may employ, retain, and compensate:

(1) attorneys, consultants, and other professionals as necessary and appropriate to serve as board consultants or special counsel to prosecute complaints filed with the board on behalf of the hearings division and investigating division; and

(2) court reporters and other staff necessary to prepare for or represent the board in the hearings authorized by this section.

(c) Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.

(d) Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under Section 164.005 or from the license holder’s counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint. The board is not required to provide:

(1) a board investigative report or memorandum;

(2) the identity of a nontestifying complainant; or

(3) attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

(e) Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.

(f) Investigative information in the possession of the board or an employee or agent relating to discipline of a license holder may be disclosed to:

(1) the appropriate licensing authority of:

(A) another state; or

(B) a territory or country in which the license holder is licensed or has applied for a license; or

(2) a medical peer review committee reviewing an application for privileges or the qualifications of the license holder with respect to retaining privileges.

(g) If investigative information in the possession of the board or its employees or agents indicates that a crime may have been committed, the board shall report the information to the appropriate law enforcement agency.

(h) The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency. Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation.



§164.008. Right to Counsel

In a hearing involving a disciplinary action under this subtitle, the respondent is entitled to appear personally, by counsel, or both.



§164.009. Judicial Review

A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final.




Texas Government Code
§ 2001.054. LICENSES.

(a) The provisions of this chapter concerning contested cases apply to the grant, denial, or renewal of a license that is required to be preceded by notice and opportunity for hearing.

(b) If a license holder makes timely and sufficient application for the renewal of a license or for a new license for an activity of a continuing nature, the existing license does not expire until the application has been finally determined by the state agency. If the application is denied or the terms of the new license are limited, the existing license does not expire until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.

(c) A revocation, suspension, annulment, or withdrawal of a license is not effective unless, before institution of state agency proceedings:

(1) the agency gives notice by personal service or by registered or certified mail to the license holder of facts or conduct alleged to warrant the intended action; and

(2) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license.

(d) A license described in Subsection (a) remains valid unless it expires without timely application for renewal, is amended, revoked, suspended, annulled, or withdrawn, or the denial of a renewal application becomes final. The term or duration of a license described in Subsection (a) is tolled during the period the license is subjected to judicial review. However, the term or duration of a license is not tolled if, during judicial review, the licensee engages in the activity for which the license was issued.