Guidance from a Skilled Medical Board Defense Lawyer
The Informal Show Compliance (“ISC”) is an opportunity for a licensee who is the subject of alleged violations of board rules, the Medical Practice Act (“the Act”), or a board order to informally dispose of the allegations. It is called an ISC because the licensee may show compliance with board rules, the Act, or the order.
The process begins with a determination by board staff that evidence of a licensee’s violation of the Act, board rules, or a board order exists. Evidence of an alleged violation is gathered during in response to a complaint submitted to the board. Board staff will refer the matter to the board’s legal division for the scheduling of an ISC if they determine that evidence of a violation exists. A licensee is guaranteed notice of the ISC, including the right to attend and participate, the nature of the allegations, and a copy of the information the board intends to use at the ISC. If the licensee is subject to a standard of care violation, the notice must also include a copy of the Expert Physician Reviewers’ Report. An Expert Physician Reviewers’ Report is a written report comprised of two to three physician evaluations of whether the licensee violated the standard of care applicable to the circumstances of the complaint. This report ensures the licensee due process of law, by providing with licensee with proper notice of the nature of the allegations.
The ISC proceeding is held before an ISC Panel: two board representatives, one lay public member and one physician member. The representatives will be accompanied by a designated Hearings Counsel who will advise the panel on legal issues, provide the panel with a historical perspective on comparable cases that have appeared before the board, and keep the proceedings focused on the case being discussed. When the proceeding begins, board staff will present a summary of the allegations and relevant facts. The licensee or his attorney may dispute the allegations and show compliance with the Act, the rules, or board order. Both sides may present any and all evidence that is relevant to the proceeding, including witness testimony. The ISC panel may question the licensee throughout the proceeding. During closing statements, board staff may propose appropriate disciplinary action and the licensee or attorney representative may respond in kind. For guidance into potential disciplinary actions, you may be interested in reviewing Figure: 22 TAC § 190.14(9) found at the following linkhttp://www.tmb.state.tx.us/idl/E56CB2B5-9722-E52F-3713-8423E08696DE.
At the conclusion of the closing statements, the board representatives shall deliberate in order to make recommendations for the disposition of the allegations. Only the two board representatives and the designated Hearings Counsel may be present during the deliberations. The board representatives may make a number of recommendations, but the most common involve a proposal for an agreed order or a remedial plan. It is important to note that the board must approve of any ISC panel recommendations. If the board does not approve of the recommendation, the licensee will be informed and the matter will be referred to board staff for appropriate action such as dismissal, further negotiation, further investigation, or a SOAH hearing. In the alternative, the board may approve the proposed agreed order or remedial plan with specified modifications. If this action is taken, the revised proposed agreed order or remedial plan must be presented to the licensee for acceptance. Lastly, if the licensee outright rejects the settlement offer, board staff must file an official complaint at SOAH.