| (a) Receipt of complaint. (1) Complainants who wish to complain to the board by telephone will be advised that their complaints must be submitted in writing, must be signed by the complainant, and that a complaint form adopted by the board will be mailed to them for their use and submission to the board. A log will be maintained with names and addresses of complainants who telephone the board offices and to whom complaint forms are mailed. Anonymous written complaints will not be investigated, but will be logged and filed for information purposes only. (2) Violation code numbers will be utilized by board staff to distinguish between categories of complaints. (b) Investigation of allegations. (1) All written and signed complaints filed with the board will be investigated. Normally, written complaints will be investigated in the order received in the board office. However, if an allegation is
determined to be critical in nature, it will be assigned a high priority and the requirement for a written and signed complaint will be waived temporarily, but will be obtained later in the investigative process. Upon receipt of a complaint, a letter of acknowledgment will be promptly mailed to the complainant. Case files will be reviewed every 30 days to ensure cases comply with scheduling. Parties to a complaint will be contacted on at least a quarterly period. (2) Generally, an investigation will be conducted in accordance with the following guidelines. (A) After a signed and written complaint is received, a board investigator will interview the complainant so that he/she has an opportunity to explain or elaborate upon the allegations made in the complaint. The interview may be conducted personally or telephonically. If the allegation is a misunderstanding, outside the jurisdiction of the board, and/or without merit, the investigator shall
submit a report to the executive director recommending the case be closed. If the executive director concurs with the recommendation, the complainant will be so notified, the case will be closed, and the file will be maintained in a secure file in the board office. If the executive director believes the case should not be closed, the investigation will proceed. (B) After the complainant's statement has been obtained, and the investigator determines that a potential violation exists, the licensee is furnished with a copy of the complaint, unless the executive director determines that an undercover investigation is necessary. If no undercover investigation is required, the investigator shall contact the licensee in writing, request any patient records deemed necessary for the investigation and schedule an interview with the licensee. The investigator may obtain a narrative statement via mail or FAX. (C) After the licensee's response,
further investigation may be necessary to corroborate the information provided by the complainant and the licensee. The investigator may include, but is not limited to, additional medical opinions, obtaining supporting documents, and interviewing other witnesses. (D) Upon the completion of an investigation, the chief investigator shall present to the executive director the elements of the investigation and a conclusion whether or not that a violation(s) probably exists. If the case requires medical judgment, the chief investigator shall review the file and then forward copies of pertinent documents, along with a cover letter, to the board secretary, who will determine whether or not the case should be closed, further investigation is warranted, or the licensee should be invited to respond to the allegations at a conference at the board offices. If the conclusion is that a violation has not occurred, the executive director shall notify the complainant and the
licensee in writing of the conclusion and that the case is dismissed. (E) If the conclusion of the executive director and/or the board secretary is that a violation(s) does exist, the executive director shall invite the licensee in writing to an informal conference at the board office to discuss the allegations made against the licensee. (c) Informal conferences. (1) Informal conferences are conducted by the executive director and/or the chief investigator. If the board secretary or the executive director recommends a conference, the chief investigator shall, by certified mail, mail to the licensee a "conference letter" with an enclosed list of allegations. The conference is conducted in accordance with the Texas Government Code, Chapter 268, Subchapter C, §§2001.051-2001.054, and is part of the investigatory process. The allegations are presented to the licensee and he/she is given every opportunity to present
his/her side of the issue. The licensee shall also have the right to waive the conference, in which case the investigation shall proceed to the next step in the disciplinary process. (2) The informal conference will generally be conducted in the following manner. Routinely in attendance at the conference are the secretary of the board, executive director, chief investigator, the investigator assigned to the case, the licensee, the licensee's attorney if counsel is retained, and the complainant if he/she desires to attend. The executive director or the chief investigator shall conduct the informal conference. The informal conference will be opened by the person conducting the conference by explaining the purpose of the conference and the rights of the parties present, and the allegations made of the licensee. The licensee is advised that he/she has the right to counsel and the right to remain silent. The licensee may respond to the allegations. The complainant,
if present, may then make comments. The licensee and the complainant will not be allowed to address remarks or questions directly to each other, but shall be directed to the person conducting the meeting. If the person conducting the conference deems appropriate, he/she may ask either or both parties to leave the room. The board secretary, board employees, or the assistant attorney general may ask questions of either party. When their questions and comments are completed, the parties will be asked to leave the room. (3) The file and the licensee's and complainant's responses will be reviewed by the board secretary with a recommendation from the assistant attorney general and the staff as to the disposition of the complaint. If the board secretary determines a violation has not occurred, he/she will dismiss the case, and will advise all parties of his/her decision and will explain the reasons why the complaint was dismissed. (4) If the
board secretary determines that a violation has occurred and that a penalty is warranted, he/she will advise the licensee of the alleged violations and offer the licensee a settlement that specifies the penalty/disciplinary action. The secretary must inform the licensee that the licensee has a right to a hearing on the occurrence of the violation, the amount of the penalty and disciplinary action, or both the occurrence of the violation and the amount of the recommended penalty/disciplinary action. (5) Within 20 days after the date the offer is made to the licensee, the licensee must submit a written response to either accept the secretary's settlement offer and recommended penalty/disciplinary action or request a hearing before an administrative law judge. (6) If the licensee accepts the settlement offer, a complaint will be docketed and he/she will sign an agreed order. The board by order shall approve or amend the agreed order and impose
the recommended penalty/disciplinary action at the next scheduled board meeting. If the board elects to not accept the agreed order, the case will be scheduled for a hearing before an administrative law judge. (d) Administrative law hearing. (1) If the licensee declines the settlement offer and requests a hearing, or if the licensee fails to respond timely to the notice, a docketed complaint will be drawn and assigned a docket number. The complaint is reviewed by the assistant attorney general, who then returns it to the board office, where any corrections are made. After the complaint is signed by the investigator before a notary public, the complaint is mailed to the board secretary, who signs it and returns the complaint to the board offices. The date the secretary signs the complaint is the official date of filing the docketed complaint with the board. The docketed complaint is then served on the respondent by certified mail or personal
service at least ten days prior to a scheduled hearing. (2) The executive director shall then set a hearing and give notice of the hearing to the licensee. The hearing shall be conducted by an administrative law judge of the State Office of Administrative Hearings. If an administrative law judge issues a proposal for decision with findings of fact and conclusions of law, the proposal for decision shall not indicate any recommended penalty as a finding of fact or conclusion of law. If a proposal for decision is issued by the administrative law judge, the board, based on the findings of fact, conclusions of law, and proposal for decision, may by order find that a violation has occurred, impose a penalty, impose disciplinary action, or may find that no violation occurred. The complainant shall be promptly advised by letter of the final disposition of the complaint. Cont'd... |
