| (a) The Act, Subchapters G and H authorizes the board
to investigate complaints.
(b) Filing and receipt of complaints.
(1) Complaints may be received in writing. Complainants
shall be invited to explain their allegations. The staff will provide
reasonable assistance to a person who wishes to file a complaint.
Anonymous complaints will be accepted, but it is understood that the
lack of a witness or the ability to secure additional information
from the anonymous complainant may result in the board's inability
to secure sufficient evidence to pursue action against the alleged
violator.
(2) When a complaint is received, the board shall notify
the parties to the complaint of the status of the complaint, unless
the notice would jeopardize an undercover investigation. The board
shall notify the parties to the complaint at least as frequently as
quarterly until there is final disposition of the complaint, in accordance
with the Act, §454.152.
(3) Not later than the tenth calendar day after a complaint
is received, the staff shall place a timeline for completion of the
investigation in the file and notify all parties to the complaint.
Any change in the timeline must be noted in the file and all parties
notified of the change not later than seven calendar days after the
change was made. For purposes of this rule, completion of an investigation
in a disciplinary matter occurs when:
(A) staff determines there is insufficient evidence
to demonstrate a violation of the Act, board rules, or a board order;
or
(B) staff determines that there is sufficient evidence
to demonstrate a violation of the Act, board rules, or a board order
and drafts proposed formal charges.
(4) The staff shall provide summary data of complaints
extending beyond the complaint timeline to the coordinator and the
executive director who will then notify the board at a regularly scheduled
meeting.
(5) The board shall keep an information file on each
complaint submitted to the board. The file will be kept current and
include a record of all persons contacted in relation to the complaint,
notes about the findings throughout the complaint process, and other
relevant information.
(6) The Investigation Committee may determine when
and if a private investigator is needed for processing of a complaint.
(7) Complaints shall be assigned a priority status
in the following categories:
(A) Those indicating that credible evidence exists
showing a violation of the Occupational Therapy Practice Act involving
actual deception, fraud, or injury to clients or the public or a high
probability of immediate deception, fraud, or injury to clients or
the public.
(B) Those indicating that credible evidence exists
showing a violation of the Occupational Therapy Practice Act involving
a high probability of potential deception, fraud, or injury to clients
or the public.
(C) Those indicating that credible evidence exists
showing a violation of the Occupational Therapy Practice Act involving
a potential for deception, fraud, or injury to clients or the public.
(D) All other complaints.
(c) The Executive Director and the Investigation Committee
will take appropriate action to investigate the complaint or take
other appropriate action.
(1) The Investigation Committee will hold meetings,
at least quarterly, to review complaints, to determine if there is
sufficient evidence to substantiate the allegations, to hold informal
conferences, to identify appropriate discipline for violations, and
to make recommendations for disciplinary action to the board.
(2) The Investigation Committee reviews the evidence
that has been submitted and gathered by the investigator and, typically
makes one of the following determinations:
(A) The scope of the complaint is beyond the authority
of the board and possibly may be handled by another entity. The committee
may refer the complainant to an appropriate entity.
(B) There is insufficient evidence to substantiate
that a violation of the Act or rules has occurred, thus closing the
investigation.
(C) Evidence indicates a possible violation did occur
and further investigation is needed.
(D) Evidence indicates a violation did occur and disciplinary
action is not warranted.
(E) Evidence indicates a violation did occur and disciplinary
action is warranted.
(d) Preliminary notice.
(1) Prior to commencing disciplinary proceedings, the
staff shall serve the respondent with written notice in accordance
with the Texas Government Code, §2001.054(c).
(2) Such notice shall contain a statement of the facts
or conduct alleged to warrant an adverse action. The notice shall
invite the respondent to show compliance with all requirements of
the law for retention of the license.
(3) The respondent shall have not less than ten calendar
days to respond in writing.
(e) Agreed orders.
(1) An agreed order is a legal document and the formal
means by which a respondent accepts the disciplinary action imposed
by the board. To be a valid document it must be approved by the board
and signed by both the respondent and the chair of the board.
(2) An agreed order may be negotiated with any person
under the jurisdiction of the board, the terms of which shall be approved
by the Investigation Committee.
(3) The agreed order will be sent to the respondent.
To accept the agreed order, the respondent must sign and return it
to the board within ten calendar days after receipt. Inaction by the
respondent constitutes rejection. If the respondent rejects the proposed
settlement, the matter shall be referred to the Investigation Committee
for appropriate action.
(4) The agreed order with the signature of the respondent
will be presented to the board. The proposed agreed order shall have
no effect until such time as the board may, at a scheduled meeting,
take action approving the agreed order. The agreed order will include
a provision requiring the respondent reimburse the board for all investigative
expenses.
(5) The respondent shall be notified of the date, time,
and place of the board meeting at which the proposed agreed order
will be considered. Attendance by the respondent is voluntary.
(6) Consideration by the board will include the following:
(A) Any board member who participated in the investigation
of the complaint or formulation of the proposed agreed order may not
vote on the agreed order.
(B) The respondent's identity will not be made available
to the board until after the board has reviewed and made a decision
on the agreed order.
(C) Upon an affirmative majority vote, the board shall
authorize the agreed order, and the chair of the board will sign it.
The board-approved agreed order will be provided to the respondent.
A copy of the order will then be placed in the licensee's permanent
file.
(D) If the board does not approve the agreed order,
the matter will be referred to the Investigation Committee or the
Executive Director for other appropriate action. The respondent and
the complainant shall be so informed.
(f) Dismissal of complaints.
(1) Complaints may be dismissed for the following reasons:
(A) No evidence available.
(B) Insufficient evidence.
(C) Other reasons which the Investigation Committee
believes are justification for dismissal.
(2) Upon the decision of the Investigation Committee
to dismiss a complaint, the person who filed the complaint is provided
a letter explaining why the complaint has been dismissed.
(3) On a quarterly basis, the board is provided with
a list of the complaints that were dismissed and the reasons for the
dismissals.
(4) At least annually the board will advise the Executive
Council of complaints which have been disposed.
(g) Informal conference.
(1) At any time after the filing of a complaint, an
informal conference may be held prior to the contested case hearing
for one or more of the following purposes:
(A) Clarifying the issues;
(B) Considering proposed admissions or stipulations
of fact;
(C) Reviewing the procedure to govern the contested
case hearing;
(D) Exchanging witness lists and agreeing to limit
the number of witnesses; and/or
Cont'd... |
