SECTION 107.103. Preliminary Investigation of a Complaint

(a) Each complaint received by the agency undergoes a preliminary investigation. The preliminary investigation determines the following:

(1) whether the board has jurisdiction over the complaint;

(2) whether the continued practice by a licensee/registrant or the continued performance by a licensee/registrant of a procedure for which the person holds a license or registration would constitute a clear, imminent, or continuing threat to a person's physical health or well-being; and

(3) whether there is probable cause to justify commencement of an official investigation.

(b) Determination of jurisdiction. A complaint is jurisdictional if it alleges conduct, that if true, would constitute a violation of the Act or board rules. A complaint is not jurisdictional if the complaint is received by the agency after the fourth anniversary of the date the act that is the basis of the complaint occurred; or the complainant discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of the act that is the basis of the complaint. A complaint that is closed in the preliminary investigation because the board has no jurisdiction over the complaint is a "Dismissed-Non Jurisdictional" complaint.

(c) If the board has jurisdiction over the complaint, board staff shall complete the preliminary investigation of the complaint not later than the 60th day after the date the agency received the complaint. If the complaint alleges a violation of the standard of care, board staff conducting the preliminary investigation of the complaint shall be or shall consult with a licensed dentist or dental hygienist who is a member of the Dental Practice Division or a member of the board.

(d) In the preliminary investigation, board staff shall determine whether the continued practice by a licensee/registrant or the continued performance by a licensee/registrant of a procedure for which the person holds a license or registration would constitute a clear, imminent or continuing threat to a person's physical health or well-being. If such determination is made, board staff may refer such complaint to the suspension panel of the board for a temporary suspension pursuant to §263.004 of Act.

(e) In the preliminary investigation, board staff may make reasonable efforts to contact the complainant concerning the complaint. Any additional information received from the complainant will be added to the information maintained on the complaint.

(f) In the preliminary investigation, the respondent may be given the opportunity to respond to the allegations. If the respondent is given this opportunity, the response must be received within the time prescribed by board staff. Any additional information received from the respondent will be added to the information maintained on the complaint.

(g) In the preliminary investigation of each jurisdictional complaint, the following minimum additional evidence will be gathered by the Investigations division:

(1) The history of the respondent collected and maintained by the agency;

(2) The history of the respondent maintained by the National Practitioner's Data Bank;

(3) Whether the respondent is a participant in the state Medicaid program and whether the allegations made in the complaint involve services provided under the state Medicaid program, for reporting purposes pursuant to §254.012 of the Act; and

(4) medical and dental records, as needed.

(h) At the conclusion of the preliminary investigation of a jurisdictional complaint, board staff shall determine whether to commence an official investigation of the complaint. A jurisdictional complaint that is closed during the preliminary investigation without proceeding to an official investigation is considered "Jurisdictional-Not Filed." A complaint that proceeds to an official investigation is considered a "Jurisdictional-Filed" complaint.

(i) If board staff fails to complete the preliminary investigation within 60 days of receiving the complaint, the board's official investigation of the complaint commences on the 60th day, and the complaint is considered a "Jurisdictional-Filed" complaint.

(j) Appeal. Following the receipt of the notice that a complaint has been closed during the preliminary investigation as a "Jurisdictional-Not Filed" complaint, the complainant may appeal the closure of the complaint to the board.

(1) To be considered by the board, the appeal must:

(A) be submitted in writing to the agency ;

(B) received by the agency no later than the 45th day after the mailing date of the notice of closure of the Jurisdictional-Not Filed complaint; and

(C) list the reason(s) for the appeal, providing sufficient information to indicate that an official investigation is warranted.

(2) Review of an Appeal. Appeals will be considered by the board in a public meeting. The board shall determine one of the following:

(A) The appeal is denied;

(B) Additional information must be obtained before a determination on the appeal can be made; or

(C) The appeal is granted.

(3) Personal Appearances. The complainant has the right to personally appear before the board considering the appeal. This appearance must be scheduled through agency staff. This appearance may be limited in time and scope by the presiding officer of the board.

(4) Notice. The complainant shall be notified of the board's decision concerning the appeal.

(5) Appeals Limited. Only one appeal shall be allowed for each complaint.

(6) Granted Appeals. If the board grants an appeal, the original complaint remains closed, and a new complaint is opened to officially investigate the complaint. The official investigation of the new complaint commences on the date the board grants an appeal.

Source Note: The provisions of this §107.103 adopted to be effective September 6, 2016, 41 TexReg 6694