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Support HB 998

Posted Apr 23 2009 5:25pm
The most critical piece of legislation that directly effects licensed health professionals has been drafted and it requires your active support. HB 998 [sponsored by Fred Brown (R) and Eddie Luico III (D)] takes final decision-marking authority away from the licensing board gives them to administrative law judges in contested case hearings.

Over the last few years, there has been a significant increase in the issues and concerns from medical professionals, the legal community, and the general public regarding the process and procedures pertaining to disciplinary matters of the various health licensing Board. The Boards including Medical, Nursing, Chiropractors, Dentist, Podiatric, Optometry, Pharmacy, Physical Therapist, Psychologist, Licensed Professional Counselors, Social Workers, Marriage and Family Counselors, and Veterinary Boards.

The current system involves a significant period of investigation of each complaint which typically takes months or longer. Unless the matter is dismissed based on internal agency review, a complaint will most often end up at an Informal Settlement and Show Compliance Conference (ISC) in front of Board representatives where the matter can be resolved by agreement, recommended for dismissal, expedited for possible temporary suspension/restriction or forwarded to the State Office of Administrative Hearings (SOAH) for a contested public hearing before an administrative law judge (ALJ). Most cases that are not resolved by agreement are referred to SOAH.

Under the existing law, the ALJ hears all of the witnesses and considers all of the evidence, but is only authorized to make recommendations to the Board in the form of a Proposal for Decision (PFD). Once a contested case is the subject of a written PFD followed by responsive exceptions and replies by the respective parties, the record and the PFD are routed to the full Board for consideration and the rendering of an order by the Boards.

Ultimately, the Boards can and regularly does change the ALJ’s proposed findings of fact, conclusions of law, and the outcome. The Board is essentially empowered to overturn, vacate, or modify the recommended decision by the ALJ who actually heard testimony, observed witness demeanor, and considered the other documentary and tangible evidence. The Board is only required to explain why it altered the ALJ’s determinations. “Policy reasons” have been deemed sufficient justification to alter and deviate from the PFD.

In short, the licensee is required to be judged and sanctioned by the same body that was unable to resolve the matter by agreement at the ISC or through mediation. HB 998 solves this process.

This process has been described as convoluted and slow. It has also been widely criticized as creating an appearance of unfairness stemming from unbridled centralized power. It is undeniably proving to be an inefficient use of taxpayer funds and agency resources.

By establishing the SOAH Administrative Law Judge as the final decision maker in contested cases, this bill would save money, would free up human resources, would promote more earnest negotiation at the ISC level, would reduce delays in disciplinary action, would improve perceptions regarding fairness of the system, and would eliminate a level of bureaucracy that is neither efficient nor cost-conscious. It would have the added benefit of allowing Board members to take a more active role in the prompt and judicious prosecution of violations before the State Office of Administrative Hearings. The safeguard for erroneous decisions would remain in place as it exists under the current statutory framework whereby either the agency or the licensee can appeal the administrative decision through the court system.

I strongly encourage you to support this bill as I truly believe will result in fair results for both sides. This bi-partisan bill will bring balance to the relationship between licensees and their Boards.

Please contact both your state representative and State senator. If you do not know who there are, please go to http://www.legis.state.tx.us.

Contact them by phone, e-mail, and letter. Also contact Representative Todd Hunter, chair of the House Committee on Judiciary and Civil Jurisprudence who will hear this bill in the near future.
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