| (a) Policy. It is the Board's policy to encourage,
where appropriate, the resolution and early settlement of contested
disciplinary matters and internal disputes through informal disposition
and mediation.
(b) Informal Disposition. Under Texas Occupations Code §263.0065,
the Board may delegate the authority to dismiss or enter into agreed
settlement for the resolution of certain complaints prior to an informal
settlement conference. Texas Occupations Code §263.007 and §263.0073
authorize the Board to resolve complaints by review at an informal
settlement conference.
(c) Scheduling of Informal Settlement Conference.
(1) Not later than the 180th day after the date the
Board's official investigation of a complaint is commenced, the Board
shall schedule an informal settlement conference unless good cause
is shown by the Board for not scheduling the conference by that date.
The following justifications represent good cause for Board staff
to postpone scheduling an informal settlement conference:
(A) an expert reviewer's delinquency in reviewing and
submitting a report to the Board under Texas Occupations Code §255.0067;
(B) a temporary suspension of the license holder's
license under Texas Occupations Code §263.004;
(C) the filing of a contested case against the licensee
with the State Office of Administrative Hearings to resolve the complaint;
(D) a pending contested case against the licensee with
the State Office of Administrative Hearings where Board staff's requested
sanction is license suspension or revocation;
(E) proposed resolution of the complaint through delegation
pursuant to Texas Occupations Code §263.0065;
(F) a delay for a final judgment resulting from federal
or state criminal charges filed against the licensee for conduct relevant
to the complaint, if conviction for such charges would represent grounds
for license suspension or revocation under the Texas Occupations Code
or Board rules;
(G) a request for delay from federal, state, or local
law enforcement to allow investigation of potential criminal charges
against the licensee for conduct relevant to the complaint, if conviction
for such charges would represent grounds for license suspension or
revocation under the Texas Occupations Code or Board rules;
(H) delay of the investigation due to Board staff's
inability to locate the licensee or complainant, or licensee's inability
or refusal to provide relevant records for the Board's investigation;
or
(I) the existence of pending complaints from prior
fiscal years which require resolution at an informal settlement conference.
(2) Requests to reschedule the informal settlement
conference by a licensee must be in writing and shall be referred
to the General Counsel for consideration. To avoid undue disruption
of the informal settlement conference schedule, the following requirements
shall be applied. A request by a licensee to reschedule an informal
settlement conference must be in writing and may be granted only if
the licensee provides satisfactory evidence of the following requirements:
(A) The request must be received by the agency within
five business days after the licensee received notice of the date
of the informal settlement conference, must provide details showing
that the licensee has a conflicting event that was scheduled prior
to receipt of notice of the informal settlement conference, and must
show the licensee has made reasonable efforts to reschedule such event
but a conflict cannot reasonably be avoided.
(B) A request received by the agency more than five
business days after the licensee received notice of the date of the
informal settlement conference must provide details showing that an
extraordinary event or circumstance has arisen since receipt of the
notice that will prevent the licensee from attending the informal
settlement conference. The request must show that the request is made
within five business days after the licensee first becomes aware of
the event or circumstance. Unavailability of the licensee's counsel
for the informal settlement conference date shall not be adequate
to show an extraordinary event or circumstance if the unavailability
is due to scheduling conflicts with counsel's other clients or matters
not related to counsel's representation of the licensee.
(3) A request by a licensee to reschedule an informal
settlement conference based on the failure of the agency to send timely
notice before the date scheduled for the informal settlement conference
shall be granted, provided that the request is received by the Board
within five business days after the late notice is received by the
licensee and the licensee provides sufficient proof that the notice
was not timely delivered to the licensee's address of record on file
with the Board.
(d) Informal Settlement Conference.
(1) Two or more members of the Board or the Dental
Review Committee shall represent the full Board at the informal settlement
conference, and at least one panelist must be a dentist. At least
one member of the representative panel shall be present in person,
but other members of the panel may appear via teleconference.
(A) Notwithstanding subsection (d)(1) of this section,
an informal settlement conference may be conducted by one panelist
if the license holder who is the subject of the complaint waives the
requirement that at least two panelists conduct the conference. If
the license holder waives that requirement, the panelist may be a
dentist, a dental hygienist, or a member who represents the public.
If the licensee attends the scheduled informal settlement conference
and, after being informed of the requirements of Texas Occupations
Code §263.0072, does not object during the scheduled time of
the conference to the lack of two panel members, the licensee shall
have waived the requirement for purposes of that complaint's proceedings.
(B) Pursuant to Texas Occupations Code §263.0072(e),
an informal settlement conference conducted under Texas Occupations
Code §263.007 to show compliance with a Board order or remedial
plan of the Board may be conducted by one panelist.
(2) The Board will provide the licensee notice in writing
of the time, date, and place of the settlement conference not later
than the 45th day before the date the conference is held. Such notification
shall inform the licensee: of the specific allegations against the
licensee and the information board staff intends to use at the informal
settlement conference; that he or she may be represented by legal
counsel; that the licensee may offer a rebuttal to the allegations,
including the exhibits or the testimony of such witnesses as he or
she may desire; that the Board will be represented by one or more
of its members and by legal counsel; and that he or she may request
that the matter be considered by the Board according to procedures
described in Texas Occupations Code §263.007. The Board's rules
or policies relating to the informal disposition of cases shall be
enclosed with the notice of the settlement conference. Notice of the
settlement conference, with enclosures, shall be sent by first class
United States Mail or overnight courier to the address of record of
the licensee on file with the Board or the licensee's attorney of
record. An electronic copy of the notice and enclosures may be provided
if the license holder or the license holder's representative consents
to such electronic notice. A settlement conference may be rescheduled
if Board staff does not provide adequate notice as required by this
subsection. Delivery of the notice is presumed to have occurred three
business days after the deposit of the notice with the United States
Postal Service, one business day after deposit of the notice with
an overnight courier, or immediately upon sending if the notice is
provided electronically.
(3) The licensee must provide to Board staff his rebuttal
not later than the 15th day before the date of the conference in order
for that information to be considered at the conference.
(4) The settlement conference shall be informal and
will not follow the procedure established in State Office of Administrative
Hearing (SOAH) rules for contested cases. The settlement conference
will be conducted by representatives of the Board. The Board's representatives
may call upon the Board's attorney at any time for assistance in conducting
the settlement conference. The licensee, his or her attorney, representative(s)
of the Board, and Board staff may question witnesses, make relevant
statements, present affidavits or statements of persons not in attendance,
and may present such other evidence as may be appropriate.
(5) The Board's representatives may prohibit or limit
access to the Board's investigative file by the licensee, his or her
attorney, and the complainant and his or her representative.
Cont'd... |
