SECTION 140.283. Violations, Complaints, Investigation of Complaints, and Disciplinary Actions

(a) Purpose. The purpose of this section is to set out:

(1) procedures concerning complaints alleging violations of the Act or this subchapter; and

(2) Department of State Health Services (department) actions against a person when violations have occurred.

(b) Compliance with the Act. A registrant or applicant must comply with the Act and this subchapter.

(c) Filing of complaints.

(1) Any person may complain to the department alleging that a registered dispensing optician or another person has violated the Act or this subchapter.

(2) A person wishing to file a complaint against a registered dispensing optician or another person shall notify the department. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the department's office. The mailing address is Opticians' Registry, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756-3183.

(3) Upon receipt of a complaint, the department shall send to the complainant an acknowledgment letter and the department's complaint form, which the complainant must complete and return to the department before further action can be taken. If the complaint is made by a visit to the department's office, the form may be given to the complainant at that time; however, it must be completed and returned to the department before further action can be taken.

(4) Anonymous complaints may be accepted by the department if the complainant provides sufficient information.

(d) Investigation of complaints.

(1) The department may investigate any complaint.

(2) If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint.

(3) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition.

(4) If the department determines that there are insufficient grounds to support the complaint, the department shall dismiss the complaint and give written notice of the dismissal to the registrant or person against whom the complaint has been filed and to the complainant.

(5) If the department determines that there are sufficient grounds to support the complaint, the department may propose to deny, suspend, revoke, probate, or not renew a registration.

(6) If an investigation is done, the investigator shall always attempt to contact the complainant to discuss the complaint.

(e) Disciplinary actions.

(1) The department may deny an application or registration renewal or suspend or revoke a registration or impose probation or administrative penalties for any violation of the Act or this subchapter.

(2) Prior to institution of formal proceedings to revoke or suspend a registration, the department shall give written notice to the registrant of the facts or conduct alleged to warrant revocation or suspension, and the registrant shall be given an opportunity, as described in the notice, to show compliance with all requirements of the Act and this subchapter.

(3) If denial, revocation, suspension, or probation of a registration is proposed, the department shall give written notice to the registrant or applicant that the applicant or registrant must request, in writing, a formal hearing within 10 days of receipt of the notice. The notice shall state the basis for the proposed action. Receipt of the notice is presumed to occur on the 10th day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt.

(4) If no timely request for a hearing is received, the applicant or registrant is deemed to have waived the hearing and be in agreement with the allegations and proposed action.

(5) The formal hearing shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001 and §140.284 of this title (relating to Registration of Applicants With Criminal Backgrounds), if applicable.

(6) If the applicant or registrant fails to appear or be represented at the scheduled hearing, the person is deemed to be in agreement with the allegations and proposed action and to have waived the right to a hearing.

(7) If the hearing is waived, the application or registration shall be denied, suspended, revoked, or probated by an order of the commissioner of health.

(8) Administrative penalties shall be assessed in accordance with the procedures set forth in the Act, Subchapter G (relating to Administrative Penalty).

(f) Suspension, revocation, or denial of renewal.

(1) If the department suspends a registration, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists or for the period of time stated in the order. The department shall investigate prior to making a determination.

(2) During the time of suspension, the suspended registrant shall return his or her registration certificate and identification card to the department.

(3) If a suspension overlaps a registration renewal date, the suspended registration holder may comply with the renewal procedures in this subchapter; however, the department may not renew the registration until the department determines that the reason for suspension no longer exists or the period of suspension is completed.

(4) If the department revokes or does not renew a registration, a person may reapply for a registration by complying with the requirements and procedures in this subchapter at the time of reapplication. The department may refuse to issue a registration if the reason for revocation or denial of renewal continues to exist.

(5) Upon revocation or denial of renewal, a registration holder shall return the registration certificate and identification card to the department.

(g) The department may impose an emergency suspension for a violation of the Act or this chapter in accordance with the procedures established in Occupations Code, §352.254.

Source Note: The provisions of this §140.283 adopted to be effective August 14, 2008, 33 TexReg 6394