| (6) The Board's representatives 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 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 may, on the basis that a violation of the
Dental Practice Act or the Board's rules has not been established,
dismiss the complaint. Dismissal of a complaint by the Board's representatives
shall be adopted after presentation to the full Board for an affirmative
vote. A recommendation to dismiss a complaint 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) Use of Mediation in Contested Disciplinary Matters.
(1) The Executive Director or General Counsel may refer
a contested disciplinary matter to a mediation process to seek resolution
or correction of any alleged violations of the Dental Practice Act
or of the Board rules. Such mediation processes may include 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 process to a contested disciplinary
matter shall be documented in written form and signed by the licensee,
and a representative of the Board and/or the Executive Director. Such
an agreement or recommendation may include any actions authorized
by Chapter 263 of the Dental Practice Act.
(3) If the mediation process results in no agreement
or recommendation, the matter shall be referred to SOAH for a contested
case hearing.
(f) Consideration by the Board.
(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
action.
(g) Restitution.
(1) 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 penalty.
(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.
|
| Source Note: The provisions of this §107.63 adopted to be effective July 18, 1989, 14 TexReg 2952; amended to be effective April 19, 1998, 23 TexReg 3831; amended to be effective November 30, 1999, 24 TexReg 10547; amended to be effective May 10, 2004, 29 TexReg 4473; amended to be effective February 24, 2008, 33 TexReg 1546; amended to be effective February 2, 2010, 35 TexReg 631; amended to be effective September 14, 2010, 35 TexReg 8342; amended to be effective December 10, 2013, 38 TexReg 8831; amended to be effective March 23, 2015, 40 TexReg 1707; amended to be effective September 24, 2018, 43 TexReg 6274 |
