SECTION 107.63. Informal Disposition and Mediation

(a) Policy. It is the Board's policy to encourage, where appropriate, the resolution and early settlement of contested disciplinary matters and internal disputes through informal disposition and mediation.

(b) Informal Disposition. Under Texas Occupations Code §263.0065, the Board may delegate the authority to dismiss or enter into agreed settlement for the resolution of certain complaints prior to an informal settlement conference. Texas Occupations Code §263.007 and §263.0073 authorize the Board to resolve complaints by review at an informal settlement conference.

(c) Scheduling of Informal Settlement Conference.

(1) Not later than the 180th day after the date the Board's official investigation of a complaint is commenced, the Board shall schedule an informal settlement conference unless good cause is shown by the Board for not scheduling the conference by that date. The following justifications represent good cause for Board staff to postpone scheduling an informal settlement conference:

(A) an expert reviewer's delinquency in reviewing and submitting a report to the Board under Texas Occupations Code §255.0067;

(B) a temporary suspension of the license holder's license under Texas Occupations Code §263.004;

(C) the filing of a contested case against the licensee with the State Office of Administrative Hearings to resolve the complaint;

(D) a pending contested case against the licensee with the State Office of Administrative Hearings where Board staff's requested sanction is license suspension or revocation;

(E) proposed resolution of the complaint through delegation pursuant to Texas Occupations Code §263.0065;

(F) a delay for a final judgment resulting from federal or state criminal charges filed against the licensee for conduct relevant to the complaint, if conviction for such charges would represent grounds for license suspension or revocation under the Texas Occupations Code or Board rules;

(G) a request for delay from federal, state, or local law enforcement to allow investigation of potential criminal charges against the licensee for conduct relevant to the complaint, if conviction for such charges would represent grounds for license suspension or revocation under the Texas Occupations Code or Board rules;

(H) delay of the investigation due to Board staff's inability to locate the licensee or complainant, or licensee's inability or refusal to provide relevant records for the Board's investigation; or

(I) the existence of pending complaints from prior fiscal years which require resolution at an informal settlement conference.

(2) Requests to reschedule the informal settlement conference by a licensee must be in writing and shall be referred to the General Counsel for consideration. To avoid undue disruption of the informal settlement conference schedule, the following requirements shall be applied. A request by a licensee to reschedule an informal settlement conference must be in writing and may be granted only if the licensee provides satisfactory evidence of the following requirements:

(A) The request must be received by the agency within five business days after the licensee received notice of the date of the informal settlement conference, must provide details showing that the licensee has a conflicting event that was scheduled prior to receipt of notice of the informal settlement conference, and must show the licensee has made reasonable efforts to reschedule such event but a conflict cannot reasonably be avoided.

(B) A request received by the agency more than five business days after the licensee received notice of the date of the informal settlement conference must provide details showing that an extraordinary event or circumstance has arisen since receipt of the notice that will prevent the licensee from attending the informal settlement conference. The request must show that the request is made within five business days after the licensee first becomes aware of the event or circumstance. Unavailability of the licensee's counsel for the informal settlement conference date shall not be adequate to show an extraordinary event or circumstance if the unavailability is due to scheduling conflicts with counsel's other clients or matters not related to counsel's representation of the licensee.

(3) A request by a licensee to reschedule an informal settlement conference based on the failure of the agency to send timely notice before the date scheduled for the informal settlement conference shall be granted, provided that the request is received by the Board within five business days after the late notice is received by the licensee and the licensee provides sufficient proof that the notice was not timely delivered to the licensee's address of record on file with the Board.

(d) Informal Settlement Conference.

(1) Two or more members of the Board or the Dental Review Committee shall represent the full Board at the informal settlement conference, and at least one panelist must be a dentist. At least one member of the representative panel shall be present in person, but other members of the panel may appear via teleconference.

(A) Notwithstanding subsection (d)(1) of this section, an informal settlement conference may be conducted by one panelist if the license holder who is the subject of the complaint waives the requirement that at least two panelists conduct the conference. If the license holder waives that requirement, the panelist may be a dentist, a dental hygienist, or a member who represents the public. If the licensee attends the scheduled informal settlement conference and, after being informed of the requirements of Texas Occupations Code §263.0072, does not object during the scheduled time of the conference to the lack of two panel members, the licensee shall have waived the requirement for purposes of that complaint's proceedings.

(B) Pursuant to Texas Occupations Code §263.0072(e), an informal settlement conference conducted under Texas Occupations Code §263.007 to show compliance with a Board order or remedial plan of the Board may be conducted by one panelist.

(2) The Board will provide the licensee notice in writing of the time, date, and place of the settlement conference not later than the 45th day before the date the conference is held. Such notification shall inform the licensee: of the specific allegations against the licensee and the information board staff intends to use at the informal settlement conference; that he or she may be represented by legal counsel; that the licensee may offer a rebuttal to the allegations, including the exhibits or the testimony of such witnesses as he or she may desire; that the Board will be represented by one or more of its members and by legal counsel; and that he or she may request that the matter be considered by the Board according to procedures described in Texas Occupations Code §263.007. The Board's rules or policies relating to the informal disposition of cases shall be enclosed with the notice of the settlement conference. Notice of the settlement conference, with enclosures, shall be sent by first class United States Mail or overnight courier to the address of record of the licensee on file with the Board or the licensee's attorney of record. An electronic copy of the notice and enclosures may be provided if the license holder or the license holder's representative consents to such electronic notice. A settlement conference may be rescheduled if Board staff does not provide adequate notice as required by this subsection. Delivery of the notice is presumed to have occurred three business days after the deposit of the notice with the United States Postal Service, one business day after deposit of the notice with an overnight courier, or immediately upon sending if the notice is provided electronically.

(3) The licensee must provide to Board staff his rebuttal not later than the 15th day before the date of the conference in order for that information to be considered at the conference.

(4) The settlement conference shall be informal and will not follow the procedure established in State Office of Administrative Hearing (SOAH) rules for contested cases. The settlement conference will be conducted by representatives of the Board. The Board's representatives may call upon the Board's attorney at any time for assistance in conducting the settlement conference. The licensee, his or her attorney, representative(s) of the Board, and Board staff may question witnesses, make relevant statements, present affidavits or statements of persons not in attendance, and may present such other evidence as may be appropriate.

(5) The Board's representatives may prohibit or limit access to the Board's investigative file by the licensee, his or her attorney, and the complainant and his or her representative.

(6) The Board's representatives shall exclude from the settlement conference all persons except the patient or other witnesses; the licensee and his or her attorney; the complainant; Board members; and Board staff. Complainants and licensees shall not be present in the informal settlement conference at the same time unless both parties consent, and the Board's representatives may exclude parties at any time to ensure the conference proceeds efficiently and with appropriate decorum.

(7) At the conclusion of the settlement conference, the Board's representatives shall make recommendations for resolution or correction of any alleged violations of the Dental Practice Act or of the Board rules. Such recommendations may include any disciplinary actions authorized by Texas Occupations Code §263.002 or a remedial plan authorized by §263.0077 of the Dental Practice Act. The Board's representatives may, on the basis that a violation of the Dental Practice Act or the Board's rules has not been established, dismiss the complaint. Dismissal of a complaint by the Board's representatives shall be adopted after presentation to the full Board for an affirmative vote. A recommendation to dismiss a complaint requires no further action by the Respondent.

(8) Board staff shall draft a proposed settlement agreement or remedial plan reflecting the settlement recommendations, which the licensee shall either accept or reject. To accept the settlement recommendations, the licensee must sign the proposed agreed settlement order or remedial plan and return it to the Board. Inaction by the licensee shall constitute rejection. If the licensee rejects the proposed agreed settlement order or remedial plan, the matter shall be referred to SOAH for a contested case hearing.

(9) Following acceptance and execution of the proposed agreed settlement order or remedial plan by the licensee, said proposed order shall be submitted to the entire Board for approval.

(10) On request of the licensee, Board staff shall make a recording of the conference. The recording is part of the investigative file and may not be released to a third party. Board staff may charge the licensee a fee to cover the cost of recording the conference. Board staff shall provide a copy of the recording to the licensee on the licensee's request.

(e) Use of Mediation in Contested Disciplinary Matters.

(1) The Executive Director or General Counsel may refer a contested disciplinary matter to a mediation process to seek resolution or correction of any alleged violations of the Dental Practice Act or of the Board rules. Such mediation processes may include any procedure described in the SOAH Rules of Procedure. Referral to mediation may occur prior to or simultaneous with a contested case filed at SOAH.

(2) Any agreement or recommendation resulting from the application of a mediation process to a contested disciplinary matter shall be documented in written form and signed by the licensee, and a representative of the Board and/or the Executive Director. Such an agreement or recommendation may include any actions authorized by Chapter 263 of the Dental Practice Act.

(3) If the mediation process results in no agreement or recommendation, the matter shall be referred to SOAH for a contested case hearing.

(f) Consideration by the Board.

(1) All proposed agreed settlement orders, remedial plans, agreements or other recommendations shall be reviewed by the full Board for approval.

(2) Upon an affirmative majority vote, the Board shall enter an order approving the proposed agreed settlement order, remedial plan, agreement, or recommendation. Said order shall bear the signature of the Presiding Officer and Board Secretary, or of the officer presiding at such meeting.

(3) If the Board does not approve a proposed settlement order, remedial plan, agreement, or recommendation, the licensee shall be so informed. The matter shall be referred by the Board to the Board Secretary and Executive Director for consideration of appropriate action.

(g) Restitution.

(1) The Board may order a licensee to pay restitution to a patient as provided in a proposed agreed settlement order or other agreement or recommendation, instead of or in addition to any administrative penalty.

(2) The amount of restitution ordered may not exceed the amount the patient paid to the licensee for the service or services from which the complaint arose. The Board shall not require payment of other damages or make an estimation of harm in any order for restitution.

Source Note: The provisions of this §107.63 adopted to be effective July 18, 1989, 14 TexReg 2952; amended to be effective April 19, 1998, 23 TexReg 3831; amended to be effective November 30, 1999, 24 TexReg 10547; amended to be effective May 10, 2004, 29 TexReg 4473; amended to be effective February 24, 2008, 33 TexReg 1546; amended to be effective February 2, 2010, 35 TexReg 631; amended to be effective September 14, 2010, 35 TexReg 8342; amended to be effective December 10, 2013, 38 TexReg 8831; amended to be effective March 23, 2015, 40 TexReg 1707; amended to be effective September 24, 2018, 43 TexReg 6274