SECTION 107.69. Temporary Suspension in Emergency

(a) In accordance with §263.004(a) of the Act, a license, permit, or registration shall be temporarily suspended when the board or an executive committee of the board determines that the continued performance of the licensee, permit holder, or registrant (respondent) would constitute a clear, imminent, or continuing threat to a person's physical health or well-being.

(b) An executive committee of the board shall convene as follows:

(1) For each temporary suspension proceeding, the presiding officer of the board shall appoint a three-member executive committee, called "suspension panel," at least two of whom must be dentists, to consider the information and evidence presented by board staff. The presiding officer of the board shall name a chair of the suspension panel.

(2) In the event of the recusal of a suspension panel member or the inability of a suspension panel member to attend a temporary suspension proceeding, an alternate board member may serve on the suspension panel upon appointment by the presiding officer.

(3) Pursuant to §551.125 of the Texas Government Code, the suspension panel may convene via telephone conference call.

(c) Temporary Suspension Hearing. The meeting at which the suspension panel considers a temporary suspension is a temporary suspension hearing. At the temporary suspension hearing, board staff shall present evidence and information to the suspension panel that the continued practice by a person licensed or registered by the board, or the continued performance by a person licensed or registered by the board of a procedure for which the person holds a permit issued by the board, would constitute a clear, imminent, or continuing threat to a person's physical health or well-being.

(d) Order of Temporary Suspension. If a majority of the suspension panel votes to temporarily suspend a license, permit, or registration, the suspension shall have immediate effect, and the chair of the suspension panel will sign an Order of Temporary Suspension. The Order of Temporary Suspension shall include or attach a factual and legal basis establishing imminent peril to the public health, safety, or welfare, as required by §2001.054(c1) of the Texas Government Code. The Order shall be sent by certified mail or hand-delivered to the respondent.

(e) Temporary Suspension Without Notice. In accordance with §263.004(b) of the Act, a license or permit may be suspended under this section without notice to the respondent if at the time of the suspension, board staff requests a hearing before the State Office of Administrative Hearings (SOAH) to be held no later than 30 days after the date the temporary suspension. The hearing is referred to as the "probable cause hearing."

(f) Notice, Continuance, and Waiver of Probable Cause Hearing. Board staff shall serve notice of the probable cause hearing upon the respondent in accordance with SOAH's rules. The respondent may request a continuance of the probable cause hearing or request to waive the probable cause hearing. If the Administrative Law Judge (ALJ) grants the continuance request or the respondent's request to waive of the probable cause hearing, the suspension remains in effect until the suspension is considered by SOAH at the continued probable cause hearing or at the final hearing. If the probable cause hearing is not held within 30 days, and the respondent did not request a continuance or waive the probable cause hearing, the suspended license, permit, or registration is reinstated.

(g) Probable Cause Hearing. At the probable cause hearing, an ALJ shall determine whether there is probable cause to continue the temporary suspension of the license, permit, or registration and issue an order on that determination.

(h) Final Hearing. If the ALJ determines that probable cause exists to continue the temporary suspension, SOAH shall hold a second hearing no later than 60 days from the date of the temporary suspension hearing. At this hearing, board staff shall present evidence supporting the continued suspension of the license, permit, or registration and may present evidence of any additional violations related to the licensee, permit holder, or registrant. This hearing is referred to as the "final hearing."

(i) Notice and Continuance of Final Hearing. Board Staff shall send notice of the final hearing in accordance with SOAH's rules. The respondent may request a continuance of the final hearing. If SOAH does not hold a final hearing within 60 days of the date of the temporary suspension hearing, and the respondent has not requested a continuance, the license, permit, or registration is reinstated.

(j) Proposal for Decision. Following the final hearing, the ALJ shall issue a proposal for decision on the suspension and any other action to be taken against the license or permit holder, for consideration by the board at its next scheduled board meeting.

(k) A temporary suspension takes effect immediately and shall remain in effect until:

(1) a final or superseding order of the Board is entered; or

(2) the ALJ issues an order determining that there is no probable cause to continue the temporary suspension of the license, permit, or registration.

Source Note: The provisions of this §107.69 adopted to be effective July 11, 2016, 41 TexReg 5051