SECTION 367.20. Informal Settlement Conference

(a) Purpose and Reference to Applicable Law. It is the policy of the Board to resolve contested cases efficiently by informally disposing of matters by agreement and voluntary settlement whenever possible, to the extent such settlement is aligned with and will advance the Board's regulatory functions. This section implements the Board's processes and procedures for effectuating informal disposition of contested cases, including procedures for conducting Informal Settlement Conferences, pursuant to §1301.5071 of the PLL. For the foregoing reasons, and in order to advance the State's policy goals expressed in Chapter 2009 of the Government Code (Governmental Dispute Resolution Act) and Chapter 154 of the Civil Practice and Remedies Code to resolve disputes as fairly and expeditiously as possible, contested cases that the Board determines are capable of being resolved by informal disposition and voluntary settlement will be referred to an Informal Settlement Conference to seek such resolution.

(b) Referral to Informal Settlement Conference (ISC). In the event an individual makes a timely request for an adjudicative hearing in accordance with §1301.704 of the PLL and Board Rules, prior to the Board docketing the matter at SOAH and setting such hearing, the Director of Enforcement will determine whether to refer the matter to an Informal Settlement Conference in accordance with this section. In making such determination, the Director of Enforcement will consider:

(1) whether the complainant or the respondent has requested an ISC in accordance with subsection (d) of this section;

(2) if an ISC is requested by the respondent, whether the request appears to have been brought in bad faith or for purposes of delay rather than to resolve the matter;

(3) the extent to which the contested case involves factual matters in dispute;

(4) the extent to which a complainant or other party has suffered damages that may be compensated through the payment of restitution, in accordance with §1301.5071 of PLL; and

(5) in cases in which the Board seeks to suspend or revoke a license, registration or endorsement, the extent to which probationary restrictions might present a viable alternative to suspension or revocation.

(c) Non-referral to Informal Settlement Conference. The following contested cases are ineligible for and will not be referred to an ISC:

(1) cases in which the Board is seeking denial of an application for a license, registration or endorsement, or to take an examination; and

(2) cases concerning a determination, following a request for preliminary review of an individual's criminal background, that an individual is ineligible for licensure.

(d) Request for Informal Settlement Conference. A complainant or the respondent may request to refer an eligible matter to an Informal Settlement Conference by making a written request delivered to the Board. A request for an ISC is a factor to be considered by the Director of Enforcement in determining whether to refer the contested case to an ISC, but will not automatically result in referral to an ISC.

(e) Notice of Informal Settlement Conference. If a contested case is referred to an ISC, the respondent will be provided with at least thirty (30) days' written notice of the ISC. The Board will contact the respondent and any other party invited to attend for purposes of attempting to set the date and time for the ISC by agreement.

(f) Submission of Informal Settlement Conference Materials. At least ten (10) days in advance of the Informal Settlement Conference, the respondent must:

(1) submit all documentary evidence to be considered by the Board at the Informal Settlement Conference not already contained in the investigation report submitted by the Board's Field Investigator and reviewed by the Board in initiating the contested case;

(2) submit any written accounts or witness statements of the respondent, or any third parties, relevant to the matter, that the respondent would like the Board to consider, signed and dated, and sworn under oath or made by unsworn declaration in accordance with Chapter 132 of the Civil Practice and Remedies Code; and

(3) to the extent respondent is represented by an attorney, a letter of representation from the attorney asserting said representation.

(g) Appearance at an Informal Settlement Conference. Appearance at an Informal Settlement Conference may be in person or by phone. The Board may conduct the Informal Settlement Conference by video conferencing to the extent it is determined by the Executive Director or Director of Enforcement to be technically feasible and allowable.

(h) Appearance by the Board. An Informal Settlement Conference is not a meeting of the members of the Board, and will not be attended by Board members. The Executive Director and/or the Director of Enforcement will attend and will preside over the Informal Settlement Conference. An attorney on the Board's staff will also attend the Informal Settlement Conference. The Field Investigator who investigated the complaint may attend, in addition to any other Board staff whose appearance may be helpful, as determined by the Executive Director or the Director of Enforcement.

(i) Invitation of the Complainant or Third Parties. The Board may invite the complainant or a third party with information relevant to the investigation to attend the Informal Settlement Conference.

(j) Format; Record. At the Informal Settlement Conference, members of Board staff will review the materials submitted by the respondent in accordance with subsection (f) of this section. Board staff will question the respondent concerning any matters deemed relevant to investigating and resolving the matter. The respondent will be given an opportunity to be heard by Board staff to present their case. The Respondent should be prepared to identify any defenses or mitigating factors weighing in favor of a lesser penalty or other form of discipline sought by the Board. A record of the proceeding may be taken as determined in the discretion of the Executive Director or Director of Enforcement, including by audio or video recording. To the extent a record is made, the Board will notify the respondent of that fact. A copy will be provided to the respondent, upon written request. Admissions made by the respondent at the ISC may be used at a formal adjudicative hearing at SOAH, if applicable.

(k) Proposed Settlement; Agreed Final Order. To the extent Board staff and the respondent agree in principle to a proposed resolution of the contested case that includes payment of restitution, action on the respondent's license or registration, the payment of an administrative penalty or any other disciplinary action, or combination of disciplinary actions, the Board will prepare an Agreed Final Order capturing the terms of the proposed settlement, to be presented to the Board for consideration and possible adoption. To the extent restitution payments are proposed, the amount of the restitution will be included in the Agreed Final Order, and the payee of the restitution payments will be specifically named, and their last known address listed, in such Agreed Final Order.

Source Note: The provisions of this §367.20 adopted to be effective August 29, 2018, 43 TexReg 5531; amended to be effective June 9, 2019, 44 TexReg 2718; amended to be effective February 16, 2023, 48 TexReg 684