Section 575.38 - Proceeding for the Modification or Termination of Agreed Orders and Disciplinary Orders(a) This rule is intended to provide a procedure whereby licensees presently subject to a board order can, if otherwise eligible, petition for the modification or termination of their board order.(b) The decision to modify or terminate all or any part of a board order is at the sole discretion of the Board unless otherwise specified in the licensee's order.(c) A request for modification or termination of an existing board order must be submitted in writing by the licensee subject to the board order. The writing must specifically detail the desired action being requested.(d) After receipt of the licensee's petition and an initial determination by board staff of the licensee's eligibility for a hearing to modify or terminate their board order, a date and time for an informal conference with the Board's enforcement committee to consider the licensee's petition for modification or termination of an existing board order shall be set and the licensee shall be provided written notice.(e) If the licensee desires to submit evidence in support of his or her petition to modify or terminate, the licensee must submit such evidence no less than seven calendar days prior to the informal conference.(f) When considering a licensee's petition for modification or termination of a board order, the Board or the enforcement committee may consider: (1) evidence presented by the licensee;(2) the existence of any pending investigations;(3) past compliance with the board order;(4) the existence of prior board orders;(5) whether there has been a significant change in circumstances that indicates that it is in the best interest of the public and licensee to modify or terminate the board order;(6) whether there has been an unanticipated, unique hardship on the licensee as a result of the board order that goes beyond the natural adverse ramifications of the disciplinary action (i.e. impossibility of requirement, geographical problems);(7) whether the licensee has engaged in special activities that are particularly commendable or so meritorious as to make modification or termination appropriate; and(8) any other information or evidence the Board or the enforcement committee deems necessary to make an informed decision.(g) At the conclusion of the informal conference, the enforcement committee shall determine whether to grant the licensee's modification or termination request, in whole or in part. The enforcement committee may deny the licensee's request, or recommend to the Board that the licensee's existing order be modified or terminated. (1) If the enforcement committee determines that a licensee's order should be modified, the Executive Director, or their designee, shall offer the licensee a modified agreed order with 14 days of the informal conference. If the licensee accepts the modified agreed order, it will be presented to the Board for consideration. (A) Additional negotiations may be held between board staff and the licensee or the authorized representative. The members of the enforcement committee shall be consulted and must concur with any subsequent substantive modifications to an offered agreed order before it is recommended to the full Board for approval.(B) If the licensee does not accept a modified agreed order, the licensee's petition for modification or termination is considered denied.(2) If the enforcement committee determines that a licensee's order should be terminated, the recommendation to terminate an order will be presented to the Board for consideration.(h) The recommendations of the enforcement committee for modification or termination of an existing order may be adopted, modified or denied by the Board. If the Board approves a modified agreed order with amendments or in lieu of termination of an existing agreed order, the licensee shall have fourteen (14) days from receipt to accept the amended agreed order by signing and returning it to the Board. If a licensee does not sign an amended agreed order or does not respond within the fourteen (14) days, the licensee's request for modification or termination is denied.(i) If either the enforcement committee or the Board denies the licensee's petition for modification or termination, the licensee is not entitled to a contested case hearing under § 575.30 of this title (relating to Contested Case Hearing at SOAH), § 801.407 of the Texas Occupations Code, or Chapter 2001 of the Texas Government Code.(j) Unless the original board order otherwise specifies, modification or termination requests may be made only once a year since the effective date of the original board order or since the effective date of any orders subsequently granting or denying modification or termination of the board order.22 Tex. Admin. Code § 575.38
The provisions of this §575.38 adopted to be effective August 29, 2013, 38 TexReg 5492