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TITLE 22EXAMINING BOARDS
PART 14TEXAS OPTOMETRY BOARD
CHAPTER 277PRACTICE AND PROCEDURE
RULE §277.1Complaint Procedures

(a) Filing complaints. Complaints may be filed in writing with the agency, either in person at the board's office, or by mail. The board shall adopt a form as its official complaint form which shall be maintained at the board's office for use at the request of any complainant. At a minimum, all complaints shall contain information necessary for the proper processing of the complaint by the board, including, but not limited to:

  (1) complainant's name, address, and phone number;

  (2) name, address, and phone number of the optometrist, therapeutic optometrist, or other person, firm, or corporation, if known;

  (3) date, time, and place of occurrence of alleged violation;

  (4) complete description of incident giving rise to the complaint; and

  (5) express authorization to release patient records to the Board where applicable.

(b) Classification of Complaints. All complaints received shall be sent to the executive director. The board shall distinguish between categories of complaints as follows:

  (1) non jurisdictional. If possible, these complaints shall be referred to an agency having jurisdiction over the complaint.

  (2) jurisdictional, requiring expertise of a licensee board member to resolve. The Board shall further classify these complaints according to the schedule in subsection (c) of this section. These complaints shall be processed according to subsection (d) of this section.

  (3) jurisdictional, concerning matters other than those requiring professional expertise of a licensee board member. The Board shall further classify these complaints according to the schedule in subsection (c) of this section. These complaints may be processed according to subsection (e) of this section.

(c) Classification of Jurisdictional Complaints. All jurisdictional complaints shall be classified in one of the following categories:

  (1) Complaints of high priority. This includes, but is not limited to, complaints alleging:

    (A) professional misconduct,

    (B) qualifications of applicants or licensees,

    (C) unauthorized practice;

    (D) other acts or the failure to act that potentially threatens the public health, and

    (E) a violation of the professional standard of care. The processing of these complaints shall have priority over normal priority complaints. The Board shall evaluate complaints of high priority to determine whether an emergency temporary suspension shall be sought under §277.8 of this title (Rule 279.8).

  (2) Complaints of normal priority. This includes, but is not limited to, complaints alleging:

    (A) advertising violations,

    (B) violations of the Act or Board Rules resulting in economic harm, and

    (C) violations of the Act regarding notice that do no potentially threaten the public health.

(d) Investigation-Enforcement Committee.

  (1) Makeup of Committee. The chair shall appoint a committee to consider all complaints classified under subsection (b)(2) of this title and complaints referred from Board staff. The committee shall be known as the investigation-enforcement committee and shall be composed of board members who are licensed optometrists or therapeutic optometrists. The executive director shall divide the state into geographic areas, with each member of the investigation-enforcement committee being assigned areas of responsibility within such geographic areas. Two members shall be charged with the responsibility of enforcing the provisions of the Act within the assigned area and are authorized to initiate investigations. The executive director shall supervise all investigations. If, as a result of an investigation within a geographic area, including an inspection of a facility or record, a complaint is filed against a licensed optometrist, therapeutic optometrist, or other person, firm, or corporation by the investigator, the members charged with that area shall assist in the handling of the prosecution of such complaint and disciplinary proceeding, if any.

  (2) Authority of Committee. The executive director shall forward a complaint classified under subsection (b)(2) above to the committee members assigned to the area of the complaint unless in the judgment of the executive director, unusual circumstances exist such that it is more appropriate that the complaint be under province of another member. The investigation-enforcement committee, or any member thereof, shall have the power to issue subpoenas and subpoenas deuces tecum to compel the attendance of witnesses and the production of books, records, and documents, to issue commissions to take depositions, to administer oaths and to take testimony concerning all matters within the assigned jurisdiction. In addition to subpoena power, each member of the committee may authorize the executive director to investigate an alleged violation.

  (3) Disposition of Complaint. On receipt of the complaint, the members shall determine:

    (A) whether to dismiss the matter and take no further action;

    (B) whether to send a letter to the person charged reciting that a complaint has been received and that while the investigating member cannot determine or pass upon the merits of the complaint without conducting further investigation that the subject of the complaint be asked to review the complaint to ensure that the Act is being complied with, and that if the allegations are true, to cease and desist from the alleged violations or words to that effect;

    (C) whether to conduct further investigations, including conducting investigational hearings or informal conferences;

    (D) whether to forward to the board the members' determination that a violation of the Act may have occurred together with a recommendation that the Board issue a remedial plan;

    (E) whether to forward to the board the members' determination that a violation of the Act may have occurred together with a recommendation that proceedings be instituted with the State Office of Administrative Hearings to consider disciplinary action, sanctions, administrative penalties, issuance of cease and desist orders, or refusal to issue a license;

    (F) whether to forward to the board the members' determination that some person, firm, or corporation may be practicing optometry without a license or otherwise violating the provisions of the Act, along with the members' recommendation that the board notify the attorney general or appropriate district attorney with accompanying request that appropriate action be taken in accordance with law; and

    (G) whether to forward to the executive director the members' determination of findings applicable to subparagraphs (D) and (E) of this paragraph to issue a remedial plan or for assessment of administrative penalties.

    (H) Should the members of the committee disagree on the disposition of the complaint, the members shall schedule an informal conference.

(e) Complaints Investigated by Staff. Board staff may investigate complaints that do not directly relate to patient care and the investigation or disposition of which do not require expertise in optometry or therapeutic optometry. The investigation may employ members of the Investigation-Enforcement Committee to assist with the investigation as authorized by subsection (d)(2). A complaint shall be directed to the Investigation-Enforcement Committee if the executive director determines that the complaint should not be dismissed or settled or the executive director is unable to reach an agreed settlement.

(f) Request for Information. The committee or board staff may request that the subject of a complaint respond in writing to the allegations in the compliant. The subject of the complaint shall have 14 days from the receipt of the Board's request to respond. The executive director may extend the time period upon a showing of good cause by the subject of the complaint.

(g) Dismissal and Tracking of Complaints. A complaint shall not be dismissed without appropriate consideration. The board and complainant shall be advised of complaint dismissals. A complaint dismissed by the executive director shall be approved by the Board at a Board Meeting. The executive director shall make a report at each board meeting regarding complaints to the Board.

(h) Basic Competence Violations.

  (1) If during the investigation of an optometrist's or therapeutic optometrist's compliance with Section 351.353 of the Act and §279.7 of this title, the optometrist or therapeutic optometrist fails to complete all the of required findings in an initial examination, the completed report of investigation will be classified as an complaint and forwarded by the executive director to the committee members.

  (2) In determining the action to take under subsection (d)(3), if any, the committee members shall consider the seriousness of the omitted finding, the compliance history of the optometrist or therapeutic optometrist, and prior actions of the board concerning similar complaints. Omission of four or more basic competency findings requires the committee members to conduct an informal conference.


Source Note: The provisions of this §277.1 adopted to be effective August 11, 1983, 8 TexReg 2934; amended to be effective January 7, 1994, 18 TexReg 9931; amended to be effective February 15, 1995, 20 TexReg 647; amended to be effective May 17, 1996, 21 TexReg 3942; amended to be effective May 10, 1998, 23 TexReg 4266; amended to be effective October 1, 1998, 23 TexReg 9744; amended to be effective May 7, 2000, 25 TexReg 3953; amended to be effective December 19, 2004, 29 TexReg 11467; amended to be effective December 6, 2005, 30 TexReg 8097; amended to be effective March 23, 2014, 39 TexReg 2079

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