| (a) Statutory Authorization and Purpose.
(1) Section 263.002(a) of the Texas Occupations Code
authorizes the Board to assess administrative penalties as disciplinary
actions against persons licensed or regulated under the Dental Practice
Act. Subchapter A of Chapter 264 of the Texas Occupations Code provides
the Board's procedure when assessing an administrative penalty. Section
264.011 of the Texas Occupations Code authorizes the Board to utilize
an administrative penalty using the informal settlement conference
process under Texas Occupations Code §263.007. Section 263.0065
of the Texas Occupations Code authorizes the Board to delegate certain
complaint dispositions to a committee of Board employees.
(2) The purpose of this rule section is to establish
the procedure to be followed by the Board and Board employees when
utilizing administrative penalties in the informal settlement process.
The processes outlined in this rule may be utilized in addition to
the assessment of administrative penalties outlined in Subchapter
A of Texas Occupations Code Chapter 264.
(b) Definitions. In this rule section, the following
terms shall apply:
(1) "Administrative Fine" is a monetary fine assessed
pursuant to Texas Occupations Code §263.002(a) in connection
with the issuance of a disciplinary sanction by the Board. Administrative
fines shall not be assessed when issuing a Remedial Plan. The Board
shall not assess an administrative fine without the issuance of a
Warning, Reprimand, Probated Suspension, or Enforced Suspension.
(2) "Administrative Penalty" is a monetary penalty
assessed as a disciplinary action pursuant to Texas Occupations Code §263.002(a).
An administrative penalty is a public disciplinary action of the Board.
An administrative penalty shall not be issued in conjunction with
the issuance of a Warning, Reprimand, Probated Suspension, Enforced
Suspension, or Remedial Plan. An administrative penalty that is issued
subject to an agreement between the parties during informal settlement
shall be referred to as an "agreed administrative penalty."
(3) "Informal Settlement Conference" is a settlement
conference held by the Board pursuant to Texas Occupations Code §263.007
and Board rule 22 TAC §107.63 (relating to Informal Disposition
and Mediation).
(4) "Licensee" means a person who holds a license,
certificate, registration, permit, or other authorization that is
issued by the Board.
(c) Use of Administrative Penalties in Informal Settlement
Conferences. The Board shall utilize administrative penalties as outlined
in this subsection during informal settlement conferences.
(1) The panel appointed for the Informal Settlement
Conference shall follow the assessment of administrative penalties
schedule in Board rule 22 TAC §107.202 (relating to Administrative
Penalty Schedule) when determining the appropriate amount of the penalty.
The administrative penalty may be proposed as an agreed settlement
for the resolution of one or more of the pending complaints considered
by the panel at the informal settlement conference.
(2) The agreed administrative penalty shall not contain
restrictions on the scope of a dentist's practice or the removal or
restriction of sedation/anesthesia permit privileges. The panel may
require the completion of up to ten hours of continuing education
in relevant practice areas through the agreed administrative penalty.
The panel shall require the completion of the Board's jurisprudence
assessment.
(3) The Board may utilize administrative penalties
as disciplinary sanctions for the resolution of all Board complaints,
with the exception of the following complaint categories that are
not eligible for administrative penalties:
(A) The death or hospitalization of a patient where
the informal settlement conference panel determines that violations
by the licensee directly contributed to the condition or cause of
the patient's death or hospitalization;
(B) Criminal conviction of a licensee for crimes directed
at patients or staff;
(C) Violations related to the provision of sedation/anesthesia
where the informal settlement conference panel determines that violations
by the licensee posed a danger to the health and safety of patients;
(D) Violations related to addiction to or habitual
intemperance in the use of alcoholic beverages or drugs, or violations
related to improperly obtaining, possessing, using, or distributing
habit-forming drugs or narcotics; or
(E) Violation of a suspension, prohibition, or restriction
of practice contained in a prior Board order.
(d) Use of Administrative Penalties in Delegated Complaint
Resolution. The Board is authorized by Texas Occupations Code §263.0065
to delegate the authority to enter into agreed settlement of certain
complaint dispositions. All delegated dispositions must be approved
at a public meeting of the Board. Should the licensee reject any attempt
at settlement, the complaint shall be scheduled for an informal settlement
conference. Subject to these requirements, the Board shall allow the
following uses of administrative penalties in delegated resolutions:
(1) An informal settlement conference panel member
may direct staff to attempt resolution of a complaint through agreed
settlement utilizing an administrative penalty prior to presentation
of the complaint for an informal settlement conference.
(2) The Board shall allow a committee of Board employees
the authority to offer an agreed settlement utilizing an administrative
penalty prior to scheduling a complaint for an informal settlement
conference. The following requirements apply to this delegated authority:
(A) Board employees are not authorized to offer settlement
of a complaint that is a violation of the standard of care involving
the licensee's clinical treatment or lack of treatment for a patient;
and
(B) The committee of Board employees must include at
least two of the following Board employees: (i) Executive Director,
(ii) General Counsel, (iii) Director of Dental Practice Division,
and (iv) Director of Investigations Division.
(e) Use of the State Office of Administrative Hearings.
If a licensee refuses to accept the recommendation of an informal
settlement conference panel to resolve a case through an agreed administrative
penalty, the Board shall follow the procedures outlined in Texas Occupations
Code §263.0073(h). The Board may impose the previously-recommended
administrative penalty, and may impose a lower amount of penalty or
a higher level of disciplinary sanction with an administrative fine
and other conditions, as justified by Board rules and the relevant
mitigating and aggravating factors identified during the contested
case process. Regardless of the recommended sanction provided by an
administrative law judge or mediator at the State Office of Administrative
Hearings, the Board shall not recommend or impose an administrative
penalty in any circumstances identified in subsection (c)(3) of this
section.
(f) Reports of Administrative Penalties.
(1) An administrative penalty shall be a public record
and shall be kept with the associated disciplinary actions taken against
each licensee.
(2) An administrative penalty shall not be considered
a restriction or limitation on the license or registration of the
licensee and shall not be reported to the National Practitioner Data
Bank.
(3) The investigative file and other records related
to the administrative penalty shall remain confidential, in accordance
with Texas Occupations Code §254.006.
(4) A report of the administrative penalties issued
shall be made to the Board at each regularly scheduled meeting.
(g) Nothing in this rule section shall be construed
to prohibit or restrict the Board from offering or imposing a different
disciplinary sanction, or a Remedial Plan, to resolve a complaint.
An offer of administrative penalty during the settlement process shall
not be binding on the Board in any subsequent contested case hearing
or mediation to resolve a complaint.
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