SECTION 187.43. Proceedings for the Modification/Termination of Agreed Orders and Disciplinary Orders

(a) Unless the board order specifies that the order shall or will be modified or terminated upon the fulfillment of certain conditions or the occurrence of certain events, the decision to modify or terminate a board order shall be a matter for the exercise of sound discretion by the board. An agreed order entered into by Respondent may not be subsequently converted to a remedial plan. A licensee may not request modification or termination of a remedial plan.

(b) Modification or termination requests shall not be contested matters, but instead shall be matters to be ruled upon through the exercise of sound discretion by the board.

(c) If a board order sets out certain conditions or events for granting modification or termination of an order, the licensee shall have the burden of establishing that such conditions or events have taken place or been met.

(d) If by the terms of the order no specific conditions or events trigger the requirement that the petition be granted, the licensee has the burden of proof of demonstrating that one or more of the following factors should be considered for purposes of analyzing the merits of the petition and exercising sound discretion:

(1) whether there has been a significant change in circumstances which indicates that it is in the best interest of the public and the licensee to modify or terminate the order;

(2) whether there has been an unanticipated, unique or undue hardship on the licensee as a result of the board order which goes beyond the natural adverse ramifications of the disciplinary action (i.e. impossibility of requirement, geographical problems). Economic hardships such as the denial of insurance coverage or an adverse action taken by a medical specialty board are not considered unanticipated, unique or undue hardships;

(3) whether the licensee has engaged in special activities which are particularly commendable or so meritorious as to make modification or termination appropriate; and

(4) whether the licensee has fulfilled the requirements of the licensee's order in a timely manner and cooperated with the board and board staff during the period of probation or restriction.

(e) Probationers must be in full compliance with all the terms and conditions of their orders in order for the board to consider modification or termination of an order unless the modification or termination relates to the factors outlined in subsection (d)(2) of this section.

(f) The determination of full compliance for the purpose of establishing eligibility for modification or termination requests will be based upon:

(1) a review of the probationer's entire compliance history, with emphasis on the compliance status since the date of last modification or termination request, if any;

(2) verification that the probationer is currently engaged in active practice;

(3) verification that the probationer has been in compliance with the terms and conditions of the order since the date of last modification or termination request, if any; and

(4) verification that the probationer is not the subject of any board investigation or pending board action of any kind.

(g) If a probationer is not in active practice, or is the subject of a board investigation or pending board action, the board may not consider the probationer's request for modification or termination until those issues are resolved.

(h) Unless the terms of the board order specify otherwise, petitions for modification or termination shall be in writing and filed with the director of compliance for the board. The petition will then be scheduled before an ISC Panel for consideration. If prior to the date of the meeting the probationer becomes the subject of a board investigation, the petition will be withdrawn and the meeting will be cancelled. For such petitions that are withdrawn, the probationer will not be eligible to submit a new petition for modification or termination until the board investigation and board action, if any, is resolved.

(i) If the modification or termination request is recommended by a board panel to be granted, but prior to full board review or approval the probationer becomes the subject of a board investigation, the panel's recommendation will be withdrawn from the board's consideration for approval. For such petitions that are withdrawn, the probationer will not be eligible to submit a new petition for modification or termination until the board's investigation and board action, if any, is resolved.

(j) Modification or termination requests may be made only once a year since the effective date of the original order or since the effective date of any orders subsequently granting or denying modification or termination of the original order unless a board order otherwise specifies, or upon an assertion in writing under oath by a petitioner indicating that a circumstance exists as described in subsection (d)(2) of this section. Upon receipt of the petition, the Director of Compliance shall determine whether such a request is valid and meets the requirements of subsection (d)(2) of this section. A finding by the Director of Compliance does not equate to such a finding by representatives of the board.

(k) For purposes of administrative convenience, modification or termination requests may be heard by the full board or by representatives of the board. If such a request is heard by representatives of the board, the representatives shall consist of at least one board member or one district review committee member. In the event such a request is heard by board representatives, the representatives of the board shall not be authorized to bind the board, but shall only make recommendations to the board regarding an appropriate disposition. The recommendation of such representatives shall be submitted to the full board for adoption or rejection in the form of an order drafted by board staff.

Source Note: The provisions of this §187.43 adopted to be effective January 6, 2002, 26 TexReg 10867; amended to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394; amended to be effective May 2, 2010, 35 TexReg 3279; amended to be effective December 25, 2011, 36 TexReg 8551; amended to be effective July 9, 2015, 40 TexReg 4355