| (E) Doing any act that may simplify the proceedings,
and dispose of matters in controversy, including settlement of issues
in dispute and preparation of an agreed order for presentation to
the board as provided herein.
(2) A respondent may request an informal settlement
conference; however, the decision to hold a conference shall be made
by the Executive Director or the Investigation Committee.
(3) Participation in an informal conference shall not
be mandatory for the licensee or applicant, nor is it a prerequisite
to a formal hearing.
(4) The Executive Director shall decide upon the time,
date, and place of the settlement conference and provide written notice
to the respondent of the same. Notice shall be provided no less than
ten calendar days prior to the date of the conference to the last
known address of the respondent. The ten days shall begin on the date
of mailing. The respondent may waive the ten-day notice requirement.
(A) The notice shall inform the respondent of the following:
(i) the nature of the alleged violation;
(ii) that the respondent may be represented by legal
counsel;
(iii) that the respondent may offer the testimony of
witnesses and present other evidence as may be appropriate;
(iv) that a board member may be present;
(v) that a representative of the Office of the Attorney
General will be present;
(vi) that the respondent's attendance and participation
is voluntary;
(vii) that the complainant and any client involved
in the alleged violations may be present; and
(viii) that the settlement conference shall be canceled
if the respondent notifies the Executive Director that he or she will
not attend.
(B) A copy of the board's rules concerning informal
disposition shall be enclosed with the notice of the settlement conference.
(5) The notice of the settlement conference shall be
sent to the complainant's last known address. The complainant shall
be informed that he or she may appear and testify or may submit a
written statement for consideration at the settlement conference.
The complainant shall be notified if the conference is canceled.
(6) Participants in the informal conference may include
a board member, agency staff, the complainant, the respondent, attorneys
representing any of the participants, and any other persons determined
by the Investigation Committee or the Executive Director to be necessary
for proper conduct of the conference. All other persons may be excluded.
(7) The settlement conference shall be informal and
shall not follow the procedures established in this chapter for contested
cases and formal hearings.
(8) The respondent, the respondent's attorney, a board
member, and board staff may question witnesses, make relevant statements,
present statements of persons not in attendance, and present such
other evidence as may be appropriate.
(9) An attorney from the Office of the Attorney General
shall attend each settlement conference. The board member or Executive
Director may call upon the attorney at any time for assistance in
the settlement conference.
(10) The respondent shall be afforded the opportunity
to make statements on his or her own behalf.
(11) Access to the board's investigative file may be
prohibited or limited in accordance with the Administrative Procedures
Act (APA), Chapter 2001, Texas Government Code, and the Open Records
Act, Chapter 552, Texas Government Code.
(12) No formal recording of the settlement conference
shall be made.
(13) At the conclusion of the settlement conference,
the board member or the Executive Director may make recommendations
for informal disposition of the complaint or contested case. The recommendations
may include any disciplinary action authorized by the Occupational
Therapy Practice Act. The board member or the Executive Director may
also conclude that the board lacks jurisdiction, that a violation
of the Act or this chapter has not been established, order that the
investigation be closed, or refer the matter for further investigation.
(h) The board follows the Administrative Procedure
Act (APA), Texas Government Code, Chapter 2001, for resolution of
complaints as a contested case. A copy of the APA procedures may be
obtained from the board.
(i) Should the recommendation for an informal disposition
not be accepted by the respondent, the complaint shall be referred
back to the Investigation Committee for appropriate action. The committee
shall determine if the case should be referred to the State Office
of Administrative Hearings (SOAH) or dismissed for insufficient evidence
or other reasons justifying a dismissal.
(j) If the Investigation Committee determines that
a violation has occurred and the respondent is not under the jurisdiction
of the board, the committee has the option of referring the case to
the appropriate authority: district attorney, county attorney, etc.
|
| Source Note: The provisions of this §374.3 adopted to be effective May 8, 1996, 21 TexReg 3718; amended to be effective July 22, 2001, 26 TexReg 5444; amended to be effective December 1, 2022, 47 TexReg 7747 |
