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RULE §277.1Complaint Procedures

(a) Purpose. Pursuant to §351.205 of the Act, the Board is authorized to adopt rules relating to the investigation of complaints filed with the Board.

(b) Complaints. Complaints shall be submitted on the official complaint form. The Board shall protect the identity of a complainant in the investigative process to the extent possible. Complaints shall contain the following information:

  (1) the name and contact information of the complainant (and patient);

  (2) the name and contact information of the person the complaint is filed against;

  (3) the date, time, and place of occurrence of alleged violation of the Act or Board rules;

  (4) the type of service (in-person or telehealth);

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

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

(c) Classification of Complaints. All complaints received shall be sent to the Executive Director. The Board shall determine jurisdiction and distinguish between categories of complaints as follows:

  (1) Non-jurisdictional. A complaint is non-jurisdictional if the Board does not have any authority over the subject of the complaint. If possible, these complaints shall be referred to an agency having jurisdiction over the complaint.

  (2) Jurisdictional. A complaint is jurisdictional if it alleges conduct that, if true, would constitute a violation of the Act or Board rules. A jurisdictional complaint may require a Board investigation including but not limited to a Board member expert review and/or contractual third-party expert review. The Board shall further classify these complaints according to the schedule in subsection (d) of this section. These complaints shall be processed according to subsection (e) of this section.

(d) 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.

  (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 not potentially threaten the public health.

  (3) Glaucoma. All complaints received relating to glaucoma shall be considered high-priority and shall be investigated pursuant to the process outlined by §277.13 and §277.14.

(e) Investigation-Enforcement Committee.

  (1) Makeup of Committee. The Chair shall appoint a committee to consider all jurisdictional 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.

  (2) Authority of Committee. The Committee shall have the power to make recommendations regarding resolution and disposition of specific cases such as those regarding professional competency or recommendations regarding dismissals of complaints and closure or investigations. The Committee may issue subpoenas and subpoenas duces 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. During the investigation of a filed jurisdictional complaint related to professional competency, members of the Committee may determine:

    (A) whether a violation of the Act or Board rules has occurred;

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

    (C) whether to conduct further investigations;

    (D) whether to forward to the Board the Committee's 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 Committee's 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 Committee's 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 Committee's determination of findings applicable to subparagraphs (D) and (E) of this paragraph to issue a remedial plan or for assessment of administrative penalties.

(f) Complaints Investigated by Staff. Board staff may investigate jurisdictional 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. During the investigation, Board staff may consult members of the Investigation-Enforcement Committee to assist with the investigation. 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.

(g) Notification and Request for Information. Once an investigation commences, Board staff shall notify the subject of the complaint and request a written response to the allegations along with patient charts and any other relevant information. The subject of the complaint shall have 14 days from the receipt of the Board's request to respond pursuant to §273.16 of this title. The Executive Director may extend the time period upon a showing of good cause by the subject of the complaint.

(h) 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.

(i) 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 §279.1 or §279.3 of this title, the optometrist or therapeutic optometrist failed to complete all the of required findings in an initial examination at which a prescription for corrective lenses is written, the completed investigation report will be classified as a complaint and forwarded by the Executive Director to the Investigation-Enforcement Committee.

  (2) In determining the action to take under subsection (e)(3), if any, the Investigation-Enforcement Committee 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; amended to be effective December 6, 2017, 42 TexReg 6796; amended to be effective February 12, 2023, 48TexReg 675

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