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TITLE 22EXAMINING BOARDS
PART 5STATE BOARD OF DENTAL EXAMINERS
CHAPTER 107DENTAL BOARD PROCEDURES
SUBCHAPTER APROCEDURES GOVERNING GRIEVANCES, HEARINGS, AND APPEALS
RULE §107.63Informal Disposition and Mediation

  (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

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