(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 and alternative
dispute resolution procedures.
(b)Informal Disposition. [
|Pursuant to Texas Government
Code, Chapter 2001 et seq., ultimate disposition of any complaint
or matter pending before the Board may be made by stipulation, agreed
settlement, or consent order.] 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 [ §263.0075, such a disposition
may be reached through] review at an informal settlement conference.
(c)Scheduling of Informal Settlement
(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;
(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)[ (c)] Informal [
Board] Settlement Conference.
(1)Two [ One] or more members
of the Board or the Dental Review Committee shall represent
the full Board at the informal [ Board] 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),
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
(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 [ representative(s)]
of the Board. The Board's representatives [ representative
] 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 [ representative(s)
] 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 [ representative(s)
] 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 [ representative(s)]
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
[ representative(s)] may, on the basis that a violation
of the Dental Practice Act or the Board's rules has not been established,
dismiss the complaint [ case, or refer the case to
Board staff for further investigation]. Dismissal [
Closure] of a complaint [ case] by the
Board's representatives [ representative(s)]
shall be adopted after [ given effect immediately without
the necessity of] presentation to the full Board for an
affirmative vote. A recommendation to dismiss [ close
] a complaint [ case] 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)[ (d)] Use of Mediation [ ADR
] In Contested Disciplinary Matters.
(1)The [ Board Secretary or the] Executive
Director or General Counsel may refer a contested disciplinary
matter to a mediation [ an ADR] process to seek
resolution or correction of any alleged violations of the Dental Practice
Act or of the Board rules. Such mediation [ ADR]
processes may include [ (A) any procedure or combination of procedures
described by Chapter 154, Texas Civil Practice and Remedies Code;
or (B)] 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 [ an ADR] process
to a contested disciplinary matter shall be documented in written
form and signed by the licensee, and a representative of [
legal counsel for] the Board and/or the Executive Director [ or
Board Secretary]. Such an agreement or recommendation may include
any disciplinary actions authorized by Chapter 263 [ §263.002
] of the Dental Practice Act.
(3)If the mediation [ ADR] process
results in no agreement or recommendation, the matter shall be referred
to SOAH for a contested case hearing.
(f)[ (e)] Consideration by the
(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
(g)[ (f)] Restitution.
(1)Pursuant to Texas Occupations Code §263.0075,
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
(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.
The agency certifies that legal counsel has
reviewed the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 8, 2018
W. Boyd Bush, Jr.
State Board of Dental Examiners
Earliest possible date of adoption: July 22, 2018
For further information, please call: (512) 475-0987