SECTION 281.22. Informal Disposition of a Contested Case

(a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, default, or dismissal.

(b) Prior to the imposition of disciplinary sanction(s) against a respondent, the board shall provide the respondent with written notice of the matters asserted, including:

(1) a statement of the legal authority, jurisdiction, and alleged conduct under which the enforcement action is based, with a reference to the particular section(s) of the statutes and rules involved;

(2) information the board staff intends to use at an informal conference;

(3) an offer for the respondent to attend an informal conference at a specified time and place and show compliance with all requirements of law, in accordance with §2001.054(c) of the Administrative Procedure Act;

(4) a statement that the respondent has an opportunity for a hearing before the State Office of Administrative Hearings on the allegations; and

(5) the following statement in capital letters in 12 point boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING, WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT. The notice shall be served by delivering a copy to the respondent in person, by courier receipted delivery, by first class mail, or by certified or registered mail, return receipt requested to the respondent's last known address of record as shown by agency records.

(c) The respondent will be provided the opportunity to appear at an informal conference prior to a hearing at the State Office of Administrative Hearings. The notice of the time and place of the informal conference, along with the written notice required in subsection (b) of this section, will be given to the respondent at least 45 days before the date of the informal conference. If such notice is not timely provided, the respondent may reschedule the informal conference.

(d) The respondent shall respond either by personal appearance at the informal conference, or by providing a rebuttal in writing no later than 15 days before the date of the informal conference. If the respondent chooses to respond in writing, the response shall admit or deny each of the allegations. If the respondent intends to deny only a part of an allegation, the respondent shall specify so much of it is true and shall deny only the remainder. The response shall also include any other matter, whether of law or fact, upon which the respondent intends to rely upon as a defense. If the respondent fails to respond to the notice specified in subsection (b) of this section, the matter will be considered as a default case and the respondent will be deemed to have:

(1) admitted all the factual allegations in the notice specified in subsection (b) of this section;

(2) waived the opportunity to show compliance with the law;

(3) waived notice of a hearing;

(4) waived the opportunity for a hearing on the allegations; and

(5) waived objection to the recommended sanctions made at the informal conference.

(e) Default orders.

(1) The informal conference panel may recommend that the board enter a default order, based upon the allegations set out in the notice specified in subsection (b) of this section, adopting the recommended sanctions made at the informal conference. Upon consideration of the case, the board may enter a default order under §2001.056 of the Administrative Procedure Act or direct that the case be set for a hearing at the State Office of Administrative Hearings.

(2) For a contested case before the State Office of Administrative Hearings, the judge may announce a default upon receiving the required showing of proof to support a default, and then recess the hearing, issue an order dismissing the case from the docket of the State Office of Administrative Hearings, and return the file to the board for informal disposition on a default basis in accordance with §2001.056 of the Administrative Procedure Act. The board may then enter a default order or direct the case back to the State Office of Administrative Hearings.

(f) Any default judgment granted under this section will be entered on the basis of the factual allegations in the notice specified in subsection (b) of this section, and upon proof of proper notice to the respondent's address of record. For purposes of this section, proper notice means notice sufficient to meet the provisions of §2001.054 of the Administrative Procedure Act and §281.30 of this title (relating to Pleadings and Notice in a Contested Case).

(g) A motion for rehearing which requests that the board vacate its default order under this section shall be granted if the motion presents convincing evidence that the failure to respond to the notice specified in subsection (b) of this section was not intentional or the result of conscious indifference, but due to accident or mistake, provided that the respondent has a meritorious defense to the factual allegations contained in the notice specified in subsection (b) of this section and the granting thereof will not result in delay or injury to the public or the board.

(h) Informal conferences shall be attended by the executive director/secretary or designated representative, legal counsel of the agency or an attorney employed by the office of the attorney general, and other representative(s) of the agency as the executive director/secretary and legal counsel may deem necessary for proper conduct of the conference. The respondent and/or the respondent's authorized representative(s) may attend the informal conference and shall be provided an opportunity to be heard. All communications from the respondent shall be directed to the legal counsel of the agency.

(i) In any case where charges are based upon information provided by a person (complainant) who filed a complaint with the board, the complainant may attend the informal conference, unless the proceedings are confidential under §564.002 and §564.003 of the Texas Pharmacy Act or other applicable law. A complainant who chooses to attend an informal conference shall be provided an opportunity to be heard with regard to charges based upon the information provided by the complainant. Nothing herein requires a complainant to attend an informal conference.

(j) Informal conferences shall not be deemed meetings of the board, and no formal record of the proceedings at such conferences shall be made or maintained unless the respondent requests such a recording in writing at least 15 days before the informal conference. Board staff will arrange for the presence of a court reporter to make the recording. The respondent shall be responsible for the cost of the recording. The recording will be part of the board's investigative file and will not be released to a third party unless authorized under §565.055 of the Act. The board will provide a copy of the recording to the respondent upon request.

(k) Any proposed consent order shall be presented to the board in open meeting for its review. At the conclusion of its review, the board shall approve or disapprove the proposed consent order. Should the board approve the proposed consent order, the appropriate notation shall be made in minutes of the board and the proposed consent order shall be entered as an official action of the board. Should the board disapprove the proposed consent order, the matter shall be scheduled for public hearing.

Source Note: The provisions of this §281.22 adopted to be effective December 30, 1998, 23 TexReg 13073; amended to be effective December 27, 2000, 25 TexReg 12689; amended to be effective September 10, 2003, 28 TexReg 7708; amended to be effective December 4, 2005, 30 TexReg 7874; amended to be effective March 25, 2007, 32 TexReg 1508; amended to be effective September 14, 2010, 35 TexReg 8356; amended to be effective June 7, 2012, 37 TexReg 4045; amended to be effective September 9, 2012, 37 TexReg 6916; amended to be effective September 8, 2013, 38 TexReg 5721; amended to be effective December 10, 2013, 38 TexReg8833