1. (a) Discovery. After the initiation and filing of a formal complaint, or upon the filing of the acupuncture board's initial pleading in any other contested matter, the following discovery rules shall apply.

   1. (1) Preliminary discovery. Not later than 30 days after receiving a written request from an opposing party, the responding party shall provide to the requesting party the following:

      1. (A) a preliminary list of the names and last known addresses of potential witnesses which the responding party reasonably anticipates may testify in its case-in-chief;
      2. (B) a list or copy of all documents, records, photographs, moving pictures, films, videotapes, audio recordings, and other such material in the possession of the responding party which the responding party intends to offer in its case-in-chief, and a reasonable opportunity to inspect and copy such items;
      3. (C) a list identifying all tangible items in the possession of the responding party which the responding party intends to offer in its case-in-chief, and a reasonable opportunity to inspect such items; and
      4. (D) a list of the names and last known addresses of any experts the responding party anticipates calling to testify in its case-in-chief.

   2. (2) Experts. Upon written request, a list identifying all of the following documents and tangible items pertaining to the responding party's experts, or copies of such documents and tangible items, shall be provided to the requesting party before the initial deposition of such an expert, or no later than five days prior to the hearing on the case if no deposition of the expert has been taken:

      1. (A) documents and tangible items which have been provided to any expert who is expected to testify in the case;
      2. (B) documents and tangible items which have been made or prepared by any expert used for consultation if such documents and tangible items form the basis, either in whole or in part, of the opinion of an expert who is expected to testify in the case; and
      3. (C) a report from each expert who is anticipated to testify in the case which generally synopsizes the expected testimony of the expert.
   3. (3) Inspection and copying. Documents and tangible items which are identified in a discovery response, but not provided, shall be made available for inspection and copying at a reasonable time and place upon the written request of an opposing party.
   4. (4) Depositions. The taking and use of depositions shall be governed by the Administrative Procedure Act or by an agreement between the parties either on the record or in a writing signed by the parties or their representatives. Except by an agreement between the parties either on the record or in a writing signed by the parties or their representatives, depositions shall be conducted and completed no later than five days prior to the scheduled hearing date. Failure of a properly noticed witness who is a party to the case to attend a deposition for the purpose of taking the testimony of that party witness, or the failure of such a witness to attend such a deposition as agreed to by the parties on the record or in a writing signed by the parties or their representatives, may result in the imposition of the sanctions and remedies set forth in subsection (e) of this section.

   5. (5) Remedies and sanctions. A failure to comply with a discovery request to the extent required by board rule, the Act, or as agreed between the parties in a discovery agreement may be remedied and sanctioned by ordering any or all of the following:

      1. (A) granting of a continuance;
      2. (B) limitations or restrictions on the admissibility and use of the evidence, to include exclusion of the evidence;
      3. (C) payment by a party of the actual travel, lodging, and court reporter costs, but not attorney fees, incurred by an opposing party as a result of the failure to comply with the discovery requirements under board rule;
      4. (D) imposition of a scheduling order providing for discovery deadlines necessary to remedy the failure to comply with discovery requirements under board rules; and
      5. (E) remedies and sanctions agreed to by the parties in writing or on the record.

   6. (6) Good cause. Good cause for failure to comply with a discovery request to the extent required by law, board rule, or as agreed between the parties in a discovery agreement may justify the imposition of less severe remedies or sanctions which might otherwise be imposed. Good cause shall include but is not limited to the following:

      1. (A) lack of knowledge of the existence of the information or material;
      2. (B) lack of access to or control of the information or material; and
      3. (C) an act of God or providence.

   7. (7) Calculation of deadlines and time limits.

      1. (A) For purposes of discovery under board rules, deadlines and time limits shall be based on calendar days; however, when a deadline falls on a Saturday, Sunday, or legal holiday, the deadline shall be extended to the next calendar day which is not a Saturday, Sunday, or legal holiday.

      2. (B) Discovery requests promulgated less than seven days prior to the scheduled hearing date shall not require a response unless agreed to by the parties on the record or in a writing signed by the parties or their representatives; however, other discovery requests promulgated at a time prior to the scheduled hearing date which by their timing allow less than the applicable deadline period for a response shall not require a response until submitted for approval by motion of the requesting party to the administrative law judge and approved in whole or in part by order of the administrative law judge. Any such approval shall provide for one or more of the following:

         1. (i) modified response deadlines;
         2. (ii) a continuance of the hearing date charged to the party requesting discovery; or
         3. (iii) such reasonable requirements which are necessary to minimize any anticipated burden or inconvenience to the responding party as a result of the lateness of the discovery request.
   8. (8) Discovery agreements. Discovery requirements governing board proceedings may be modified by agreement of the parties either on the record or in a writing signed by the parties or their representatives.
   9. (9) Ordered modification of discovery. Modification of discovery requirements under board rules may be ordered by an administrative law judge pursuant to an agreement of the parties or the discovery provisions under board rules pertaining to remedies and sanctions.
   10. (10) Official notice. No later than three days prior to the date of the hearing, the parties shall exchange lists specifying all matters which each party will seek to have officially noticed at the hearing.
   11. (11) Final witness list. No later than five days prior to the date of the hearing, the parties shall exchange final lists identifying the names and last known addresses of the witnesses each party intends to call to testify in its case-in-chief.
   12. (12) Waiver of privilege/confidentiality. The provision of any information or material in response to a discovery request which may be the subject of a privilege or confidentiality requirement under the Act or other applicable law shall not constitute a waiver of any such privilege or confidentiality requirement with respect to other such information or material not provided.
   13. (13) Supplementation. Upon receiving new information or material, or upon otherwise determining that an inaccuracy exists in a previous discovery response, each party shall supplement such responses as soon as practicable.

2. (b) Subpoenas.

   1. (1) Authority. Pursuant to the Act, §2.09(i), the acupuncture board has the authority through the medical board to issue subpoenas to compel the attendance of witnesses and subpoena duces tecum to compel the production of books, records, or documents when requested by a party or on the board's own motion.

   2. (2) Request. A party may request at any time during the pendency of a proceeding, including a contested case, that the acupuncture board through the medical board issue a subpoena or subpoena duces tecum upon a showing of good cause, the relevancy, and necessity of the testimony or documents, lack of undue inconvenience, imposition, or harassment of the party required to produce the testimony or documents and the deposit of sums sufficient to insure payment of expenses incident to the subpoenas.

      1. (A) The party requesting the subpoena shall be responsible for the payment of any expense incurred in serving the subpoena, as well as reasonable and necessary expenses incurred by the witness who appears in response to the subpoena.
      2. (B) The party requesting a subpoena duces tecum shall describe and recite with great clarity, specificity, and particularity the books, records, or documents to be produced.
   3. (3) Ministerial act. When requested by a party to issue a subpoena or subpoena duces tecum, the board is performing a ministerial act and shall do so in accordance with the law; however, the board shall not be responsible for inadequacies, insufficiencies, or lack of pleading by the requesting parties or the consequences thereof.
   4. (4) Service and expenses. A subpoena issued at the request of the board's staff may be served either by a board investigator or by certified mail, return receipt requested. The board shall pay reasonable charges for photocopies produced in response to a subpoena requested by the board's staff, but such charges may not exceed those billed by the board for producing copies of its own records.
   5. (5) Fees and travel. A witness called at the request of the board shall be paid a fee of $25 per day and reimbursed for travel in like manner as board employees. An expert witness called at the request of the board shall be paid a fee of $300 per day and reimbursed for travel in like manner as board members.

3. (c) Show compliance proceeding. Pursuant to the Medical Practice Act, §4.02, and the Administrative Procedure Act, §2001.054, the following rules shall apply to show compliance proceedings.

   1. (1) Prior to institution of acupuncture board proceedings to revoke, suspend, or take disciplinary action relating to a license or to involuntarily modify restrictions on a license, the physician shall be given an opportunity to show compliance with all requirements of law for the retention of an unrestricted license either in writing or through a personal appearance at an informal meeting with one or more representatives of the board at the option of the licensee.
   2. (2) The opportunity to show compliance under this section shall be extended to a licensee in writing by certified mail, return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board.
   3. (3) Prior to a show compliance proceeding under this section, the licensee shall be provided with a brief written statement of the nature of the allegations to be addressed at the show compliance proceeding along with a brief written statement of the provisions of the Act which may be grounds for board disciplinary action. These statements shall be provided to the licensee by certified mail, return receipt requested, overnight or express mail, or registered mail to the last mailing address of the licensee or the licensee's attorney on file with the board. The licensee shall also be provided with written notice of the time, date, and location of the show compliance proceeding and the rules governing the proceeding by certified mail, return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board.
   4. (4) A licensee shall be afforded an opportunity to show compliance with the law as provided for under this section; however, a licensee's refusal or failure to take such an opportunity when offered, or when scheduled with proper notice to the licensee, shall not require that an additional show compliance opportunity be made available. In the discretion of the board's representative(s) an additional show compliance opportunity may be afforded to a licensee who refused a previous opportunity or failed to attend a scheduled show compliance proceeding.
   5. (5) One or more members of the acupuncture board shall conduct the show compliance proceeding as the board's representative(s). The representative who has seniority on the board shall chair the proceeding. In the event a public member of the board serves as the only board representative in such a proceeding, a board consultant or the medical board's executive director, if the executive director is a physician, may serve as an advisor to the representative.

   6. (6) The show compliance proceeding shall allow:

      1. (A) the board staff to present a synopsis of the allegations and the facts which the board staff reasonably believes could be proven by competent evidence at a hearing;
      2. (B) the licensee to reply to the board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing;
      3. (C) presentation of evidence by the staff and the licensee which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the acupuncture board's representative(s) are relevant to the proceeding;
      4. (D) representation of the licensee by counsel;
      5. (E) presentation of oral or written statements by the licensee or the licensee's counsel;
      6. (F) presentation of oral or written statements or testimony by witnesses; and
      7. (G) questioning of witnesses.
   7. (7) The acupuncture board's representative(s) shall exclude from the show compliance proceeding all persons except witnesses during their testimony or presentation of statements, the licensee, the licensee's attorney or representative, board members, and board staff.
   8. (8) During the show compliance proceeding, the acupuncture board's legal counsel or a representative of the Office of the Attorney General shall be present to advise the board's representative(s) or the board's employees.
   9. (9) Except with the agreement of the licensee, during the deliberations of the acupuncture board's representative(s) at a show compliance proceeding, the acupuncture board representative(s) shall exclude the board staff who presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's attorney or representative, the complainant, witnesses, and the general public. The board's legal counsel or a representative of the Office of the Attorney General shall be available to assist the representative(s) in deliberations.
   10. (10) After a show compliance proceeding has been held, the acupuncture board staff and the acupuncture board's representative(s) shall be subject to the ex parte provisions of the Administrative Procedure Act with regard to contacts with acupuncture board members and administrative law judges concerning the case.
   11. (11) To the extent possible, acupuncture board members are required to serve as representatives at show compliance proceedings an equal number of times during a calendar year. In the event an acupuncture board member has a complaint regarding the frequency or infrequency of service as a representative required for any member, the complaint may be routed in writing to the director of hearings for the medical board who shall then bring the complaint to the attention of the presiding officer of the acupuncture board for submission to the acupuncture board for a resolution by a majority vote.
   12. (12) The show compliance proceeding may be held in conjunction with, and simultaneously with, an informal settlement conference held pursuant to subsection (h) of this section.
   13. (13) The acupuncture board's representative(s) may call upon board staff at any time for assistance in conducting the show compliance proceeding.
   14. (14) The acupuncture board's representative(s) shall prohibit or limit access to the board's investigative file by the licensee, the licensee's attorney or representative, the complainant, witnesses, and the public consistent with the Act, §4.05(c).
   15. (15) At the conclusion of the show compliance proceeding, the acupuncture board's representative(s) shall make recommendations for disposition of the complaint or allegations which may include recommendations of dismissal and closure of the related investigation. In the event a dismissal and closure of the investigation is not recommended, the representative(s) shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under the provisions of applicable law concerning contested cases.
   16. (16) The licensee may have the show compliance proceeding recorded and reduced to writing at the licensee's expense after providing written notice to the director of hearings for the medical board at least one day in advance of the show compliance proceeding. Recording and transcribing equipment shall be provided by the licensee. Efforts to mediate the disputed matters or discussions concerning possible settlement options shall not be recorded.

4. (d) Prehearing conferences.

   1. (1) Appearance. In any contested case the hearings examiner or administrative law judge on his or her own motion or on the motion of a party may direct the parties, their attorneys or representatives to appear before him or her at a specified time and place for a conference prior to the hearing for the purpose of:

      1. (A) formulating issues;
      2. (B) simplifying issues;
      3. (C) discussing matters to be officially noticed;
      4. (D) discussing the possibility of making admissions of certain averments of fact or stipulations concerning the use by either or both parties of matters of public record, such as official records of the acupuncture board or medical board, to the end of avoiding the unnecessary introduction of proof;
      5. (E) ruling on any previously filed motions;
      6. (F) discussing the procedure at a hearing;
      7. (G) discussing the limitation, where possible, of the number of witnesses; and
      8. (H) discussing such other matters as may aid in the simplification of the proceedings.
   2. (2) Order. Action taken at the conference shall be recorded in an appropriate order by the hearings examiner or administrative law judge.

5. (e) Motions.

   1. (1) Any motion filed in a pending proceeding shall, unless made during a hearing:

      1. (A) be in writing;
      2. (B) set forth the specific grounds and reasons therefor, and the relief sought;
      3. (C) be distributed to all parties of record over a certificate of service as outlined in §183.9(h) and (k) of this title (relating to Procedure--General);
      4. (D) be filed with the hearings examiner not less than five days prior to the hearing date;
      5. (E) if based on facts or matters which are not of record, be supported by an affidavit; and
      6. (F) be ruled on by the hearings examiner at the prehearing conference or at the hearing.

   2. (2) Motions for continuance or for dismissal of complaint shall:

      1. (A) comply with subsection (a)(1)-(6) of this section;
      2. (B) make reference to all prior motions of the same nature filed in the same proceeding.
   3. (3) When a complaint has proceeded to its hearing date, pursuant to the notice issued therein, no continuance or dismissal shall be granted by the hearings examiner or administrative law judge without the consent of all parties involved.

6. (f) Consolidated hearings. A motion for consolidation of two or more complaints, applications, petitions, or other proceedings shall comply with subsection (e) of this section. Proceedings shall not be consolidated unless the board shall find that:

   1. (1) the proceedings involve common questions of law and fact; and
   2. (2) separate hearings would result in unwarranted expense, delay, or substantial injustice.
7. (g) Place and nature of hearings. All hearings conducted in any proceedings shall be open to the public. All hearings shall be held in Austin, unless for good and sufficient cause the board shall designate another place of hearing in the interest of the public.

8. (h) Informal disposition. Pursuant to the Act, §4.02 and §4.025, and the Administrative Procedure Act, §2001.056, the following rules shall apply to informal dispositions of any complaint or matter relating to the Act or of any contested case.

   1. (1) The acupuncture board may make an informal disposition of any complaint or matter relating to the Act or of any contested case by stipulation, agreed order, agreed settlement, consent order, or default.
   2. (2) In the event the acupuncture board makes such a disposition of a complaint, contested case, or other matter, the disposition shall be in writing and, if appropriate, the writing shall be signed by the licensee.
   3. (3) To facilitate the expeditious disposition of complaints or contested cases, the acupuncture board may provide a licensee with an opportunity to attend an informal settlement conference. The informal settlement conference may be held in conjunction with and simultaneously with a show compliance proceeding held pursuant to subsection (c) of this section.
   4. (4) If the opportunity for an informal settlement conference is provided to a licensee, the licensee shall be provided with a brief statement of the nature of the allegations to be addressed at the conference along with a brief statement of the provisions of the Act which may be grounds for board disciplinary action. These statements shall be provided to the licensee by certified mail, return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board. The licensee shall also be provided with written notice of the time, date, and location of the conference and the rules governing the proceeding by certified mail, return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the licensee or the licensee's attorney on file with the board.
   5. (5) One or more members of the acupuncture board shall conduct the informal settlement conference as the board's representative(s). The representative who has seniority on the board shall chair the conference. In the event a public member of the acupuncture board serves as the only acupuncture board representative in such a conference, a board consultant or the medical board's executive director, if the executive director is a physician, may serve as an advisor to the representative.

   6. (6) The informal settlement conference shall allow:

      1. (A) board staff to present a synopsis of the allegations and the facts which staff reasonably believes could be proven by competent evidence at a hearing;
      2. (B) the licensee to reply to the acupuncture board staff's presentation and present facts the licensee reasonably believes could be proven by competent evidence at a hearing;
      3. (C) presentation of evidence by the staff and the licensee which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board's representative(s) are relevant to the proceeding;
      4. (D) representation of the licensee by counsel;
      5. (E) presentation of oral or written statements by the licensee or the licensee's counsel;
      6. (F) presentation of oral or written statements or testimony by witnesses; and
      7. (G) questioning of witnesses.
   7. (7) The acupuncture board's representative(s) shall exclude from the informal settlement conference all persons except witnesses during their testimony or presentation of statements, the licensee, the licensee's attorney or representative, board members, and board staff.
   8. (8) During the informal settlement conference, the acupuncture board's legal counsel or a representative of the Office of the Attorney General shall be present to advise the acupuncture board's representative(s) or the board's employees.
   9. (9) Except with the agreement of the licensee, during the deliberations of an appropriate settlement, the acupuncture board's representative(s) at an informal settlement conference shall exclude the board staff which presented the allegations and facts related to the complaint against the licensee, the licensee, the licensee's attorney or representative, the complainant, witnesses, and the general public. A board legal counsel or representative of the Office of the Attorney General shall be available to assist the representative(s) in their deliberations.
   10. (10) After an informal settlement conference has been held, the staff of the board and the acupuncture board's representative(s) shall be subject to the ex parte provisions of the Administrative Procedure Act with regard to contacts with board members and administrative law judges concerning the case.
   11. (11) To the extent possible, acupuncture board members are required to serve as representatives at informal settlement conferences an equal number of times during a calendar year. In the event an acupuncture board member has a complaint regarding the frequency or infrequency of service as a representative required for any member, the complaint may be routed in writing to the director of hearings for the medical board who shall then bring the complaint to the attention of the presiding officer of the acupuncture board for submission to the acupuncture board for a resolution by a majority vote.
   12. (12) At the informal settlement conference, the acupuncture board's representative(s) will attempt to mediate disputed matters, and the acupuncture board's representative(s) may call upon the board staff at any time for assistance in conducting the informal settlement conference.
   13. (13) The acupuncture board's representative(s) shall prohibit or limit access to the board's investigative file by the licensee, the licensee's attorney or representative, the complainant, witnesses, and the public consistent with the Act, §4.05(c).
   14. (14) Although notes may be made by the participants, mechanical or electronic recordings shall not be made of settlement discussions, mediation efforts, or the informal settlement conference.
   15. (15) The settlement conference shall be informal and shall not follow the procedures established under this title for contested cases.
   16. (16) At the conclusion of the informal settlement conference, the acupuncture board's representative(s) shall make recommendations for disposition of the complaint or allegations which may include recommendations of dismissal and closure of the related investigation. In the event a dismissal and closure of the investigation is not recommended, the representative(s) shall make a recommendation regarding the disposition of the case in the absence of a hearing under the provisions of applicable law concerning contested cases. The acupuncture board's representative(s) may make recommendations to the licensee for resolution of the issues. Such recommendations may include any disciplinary actions authorized by the Act and such other reasonable restrictions or remedial actions that are in the public interest. These recommendations may be subsequently modified by the acupuncture board's representative(s) or staff based on new information, a change of circumstance, or to expedite a resolution in the interest of protecting the public. The board's representative(s) may also conclude that the acupuncture board lacks jurisdiction or that a violation of the Act or the acupuncture board's rules has not been established, and may recommend that the investigation be closed or referred for further investigation. These recommendations may be adopted, modified, or rejected by the duly convened acupuncture board or through the duly authorized actions of the acupuncture board's Discipline and Ethics Committee.
   17. (17) The licensee may either accept or reject the settlement recommendations proposed by the board's representative(s). If the licensee accepts the recommendations, the licensee shall execute the settlement agreement in the form of an agreed order or affidavit as soon thereafter as is practicable. If the licensee rejects the proposed agreement, the matter shall be referred to the board's staff for appropriate disposition as directed by the acupuncture board's representative(s) or the Discipline and Ethics Committee. The acupuncture board through board staff may also schedule the matter for a hearing as described in §183.11 of this title (relating to Procedure--Hearing).
   18. (18) Following acceptance and execution by the licensee of the settlement agreement, the agreement shall be submitted to the acupuncture board for approval.

   19. (19) The following relate to consideration of an agreed disposition by the acupuncture board.

       1. (A) Upon an affirmative majority vote, the acupuncture board shall enter an order approving the proposed settlement agreement. The order shall bear the signature of the presiding officer of the board at such meeting and shall be referenced in the minutes of the board.
       2. (B) If the acupuncture board does not approve a proposed settlement agreement, the licensee shall be so informed and the matter shall be referred to the board staff for appropriate action to include dismissal, closure, further negotiation, further investigation, an additional informal settlement conference, or a hearing.
       3. (C) To promote the expeditious resolution of any complaint or matter relating to the Act or of any contested case, with the approval of the executive director of the medical board, or the Discipline and Ethics Committee of the acupuncture board, board staff may present a proposed settlement agreement to the acupuncture board for consideration and acceptance without conducting an informal settlement conference. If the acupuncture board does not approve such a proposed settlement agreement, the licensee shall be so informed and the matter shall be referred to board staff for appropriate action to include dismissal, closure, further negotiation, further investigation, an informal settlement conference, or a hearing.

Source Note:The provisions of this §183.10 adopted to be effective May 16, 1994, 19 TexReg 3366.