SECTION 107.201. Procedures for Assessment of Administrative Penalties in Informal Complaint Resolution

(a) Statutory Authorization and Purpose.

(1) Section 263.002(a) of the Texas Occupations Code authorizes the Board to assess administrative penalties as disciplinary actions against persons licensed or regulated under the Dental Practice Act. Subchapter A of Chapter 264 of the Texas Occupations Code provides the Board's procedure when assessing an administrative penalty. Section 264.011 of the Texas Occupations Code authorizes the Board to utilize an administrative penalty using the informal settlement conference process under Texas Occupations Code §263.007. Section 263.0065 of the Texas Occupations Code authorizes the Board to delegate certain complaint dispositions to a committee of Board employees.

(2) The purpose of this rule section is to establish the procedure to be followed by the Board and Board employees when utilizing administrative penalties in the informal settlement process. The processes outlined in this rule may be utilized in addition to the assessment of administrative penalties outlined in Subchapter A of Texas Occupations Code Chapter 264.

(b) Definitions. In this rule section, the following terms shall apply:

(1) "Administrative Fine" is a monetary fine assessed pursuant to Texas Occupations Code §263.002(a) in connection with the issuance of a disciplinary sanction by the Board. Administrative fines shall not be assessed when issuing a Remedial Plan. The Board shall not assess an administrative fine without the issuance of a Warning, Reprimand, Probated Suspension, or Enforced Suspension.

(2) "Administrative Penalty" is a monetary penalty assessed as a disciplinary action pursuant to Texas Occupations Code §263.002(a). An administrative penalty is a public disciplinary action of the Board. An administrative penalty shall not be issued in conjunction with the issuance of a Warning, Reprimand, Probated Suspension, Enforced Suspension, or Remedial Plan. An administrative penalty that is issued subject to an agreement between the parties during informal settlement shall be referred to as an "agreed administrative penalty."

(3) "Informal Settlement Conference" is a settlement conference held by the Board pursuant to Texas Occupations Code §263.007 and Board rule 22 TAC §107.63 (relating to Informal Disposition and Mediation).

(4) "Licensee" means a person who holds a license, certificate, registration, permit, or other authorization that is issued by the Board.

(c) Use of Administrative Penalties in Informal Settlement Conferences. The Board shall utilize administrative penalties as outlined in this subsection during informal settlement conferences.

(1) The panel appointed for the Informal Settlement Conference shall follow the assessment of administrative penalties schedule in Board rule 22 TAC §107.202 (relating to Administrative Penalty Schedule) when determining the appropriate amount of the penalty. The administrative penalty may be proposed as an agreed settlement for the resolution of one or more of the pending complaints considered by the panel at the informal settlement conference.

(2) The agreed administrative penalty shall not contain restrictions on the scope of a dentist's practice or the removal or restriction of sedation/anesthesia permit privileges. The panel may require the completion of up to ten hours of continuing education in relevant practice areas through the agreed administrative penalty. The panel shall require the completion of the Board's jurisprudence assessment.

(3) The Board may utilize administrative penalties as disciplinary sanctions for the resolution of all Board complaints, with the exception of the following complaint categories that are not eligible for administrative penalties:

(A) The death or hospitalization of a patient where the informal settlement conference panel determines that violations by the licensee directly contributed to the condition or cause of the patient's death or hospitalization;

(B) Criminal conviction of a licensee for crimes directed at patients or staff;

(C) Violations related to the provision of sedation/anesthesia where the informal settlement conference panel determines that violations by the licensee posed a danger to the health and safety of patients;

(D) Violations related to addiction to or habitual intemperance in the use of alcoholic beverages or drugs, or violations related to improperly obtaining, possessing, using, or distributing habit-forming drugs or narcotics; or

(E) Violation of a suspension, prohibition, or restriction of practice contained in a prior Board order.

(d) Use of Administrative Penalties in Delegated Complaint Resolution. The Board is authorized by Texas Occupations Code §263.0065 to delegate the authority to enter into agreed settlement of certain complaint dispositions. All delegated dispositions must be approved at a public meeting of the Board. Should the licensee reject any attempt at settlement, the complaint shall be scheduled for an informal settlement conference. Subject to these requirements, the Board shall allow the following uses of administrative penalties in delegated resolutions:

(1) An informal settlement conference panel member may direct staff to attempt resolution of a complaint through agreed settlement utilizing an administrative penalty prior to presentation of the complaint for an informal settlement conference.

(2) The Board shall allow a committee of Board employees the authority to offer an agreed settlement utilizing an administrative penalty prior to scheduling a complaint for an informal settlement conference. The following requirements apply to this delegated authority:

(A) Board employees are not authorized to offer settlement of a complaint that is a violation of the standard of care involving the licensee's clinical treatment or lack of treatment for a patient; and

(B) The committee of Board employees must include at least two of the following Board employees: (i) Executive Director, (ii) General Counsel, (iii) Director of Dental Practice Division, and (iv) Director of Investigations Division.

(e) Use of the State Office of Administrative Hearings. If a licensee refuses to accept the recommendation of an informal settlement conference panel to resolve a case through an agreed administrative penalty, the Board shall follow the procedures outlined in Texas Occupations Code §263.0073(h). The Board may impose the previously-recommended administrative penalty, and may impose a lower amount of penalty or a higher level of disciplinary sanction with an administrative fine and other conditions, as justified by Board rules and the relevant mitigating and aggravating factors identified during the contested case process. Regardless of the recommended sanction provided by an administrative law judge or mediator at the State Office of Administrative Hearings, the Board shall not recommend or impose an administrative penalty in any circumstances identified in subsection (c)(3) of this section.

(f) Reports of Administrative Penalties.

(1) An administrative penalty shall be a public record and shall be kept with the associated disciplinary actions taken against each licensee.

(2) An administrative penalty shall not be considered a restriction or limitation on the license or registration of the licensee and shall not be reported to the National Practitioner Data Bank.

(3) The investigative file and other records related to the administrative penalty shall remain confidential, in accordance with Texas Occupations Code §254.006.

(4) A report of the administrative penalties issued shall be made to the Board at each regularly scheduled meeting.

(g) Nothing in this rule section shall be construed to prohibit or restrict the Board from offering or imposing a different disciplinary sanction, or a Remedial Plan, to resolve a complaint. An offer of administrative penalty during the settlement process shall not be binding on the Board in any subsequent contested case hearing or mediation to resolve a complaint.

Source Note: The provisions of this §107.201 adopted to be effective July 11, 2016, 41 TexReg 5051; amended to be effective January 3, 2019, 43 TexReg 8592