(a) Purpose and Construction. The Board has established
the following administrative penalty schedule based upon consideration
of the required factors outlined in Section 264.002(b) of the Texas
Occupations Code. The Board and Board employees shall utilize this
schedule when recommending an administrative penalty amount under
Subchapter A of Texas Occupations Code Chapter 264 and §107.201
of this title (relating to Procedures for Assessment of Administrative
Penalties in Informal Complaint Resolution). Nothing in this rule
section shall be construed to prohibit the Board from 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.
(b) Definitions. The definitions contained in §107.201(b)
of this title shall apply to this rule section.
(c) Penalty Schedule. The amount of an administrative
penalty shall not exceed five thousand dollars for each violation,
in accordance with Texas Occupations Code §264.002(a). The Board
shall identify each violation and element of the penalty amount showing
the constituent elements of the total penalty assessed. Pursuant to
Texas Occupations Code §264.002(a), each day a violation continues
or occurs is a separate violation for purposes of imposing a penalty.
The type and base amount of each penalty shall be as follows:
(1) Violation of a Board Administrative Rule. A violation
involving purely administrative requirements that does not involve
the care of patients. Violations under this classification include,
but are not limited to:
(A) failure to timely complete continuing education
requirements;
(B) practice with expired license, permit, or registration;
(C) failure to comply with Board advertising rules
and restrictions;
(D) permitting a staff member to practice with an expired
license, permit, or registration; and
(E) failure to maintain a current and accurate contact
address with the Board. The base amount of this penalty shall be one
hundred dollars.
(2) Basic Recordkeeping and Patient Communication.
A violation involving maintenance of patient records, providing patient
records upon request, and required communication with a patient. Violations
under this classification include, but are not limited to:
(A) failure to provide records to a patient within
30 days of request;
(B) failure to provide adequate intent to discontinue
undertaken treatment notice to the patient as required by §108.5
of this title (relating to Patient Abandonment) (each missing element
represents a separate violation);
(C) failure to report a patient hospitalization as
required by §108.6 of this title (relating to Report of Patient
Death or Injury Requiring Hospitalization);
(D) failure to review and update patient medical history
annually; and
(E) failure to record patient vital signs as required
by Board rule. The base amount of this penalty shall be two hundred
fifty dollars.
(3) Preparedness, Patient Safety, and Sanitation. A
violation involving failure to adequately clean and prepare the dental
office or location where patients will be treated. Violations under
this classification include, but are not limited to:
(A) failure to prepare adequate emergency protocols
and ensure staff training for emergencies;
(B) failure to comply with sanitation requirements
and testing; and
(C) failure to maintain adequate supplies of emergency
response medications and supplies as required by the licensee's practice
type and sedation/anesthesia permit level. The base amount of this
penalty shall be five hundred dollars.
(4) Standard of Care and Fair Dealing. A violation
involving direct clinical treatment or lack of treatment for the patient.
Violations under this classification include, but are not limited
to:
(A) falling below the minimum standard of care when
performing endodontic, orthodontic, restorative, or other dental treatment;
(B) provision of sedation/anesthesia below the minimum
standard of care, where the violations did not pose a danger to the
health and safety of patients;
(C) failing to obtain adequate written informed consent
from the patient for all procedures performed;
(D) violation of the duty of fair dealing by overcharging,
overbilling, or overtreating the patient; and
(E) misleading a patient as to the gravity of their
dental needs. The base amount of this penalty shall be one thousand
dollars.
(d) Additional Factors in Penalty Calculation. The
Board shall apply the base amount of each penalty for each day of
the violation as identified through the Board's investigation of a
complaint. Additionally, the Board shall apply the considerations
required by Texas Occupations Code §264.002(b)(1) - (5), and
the following additional factors to calculate a final administrative
penalty.
(1) Previous Disciplinary Action. If a licensee has
received prior disciplinary action for the same conduct representing
grounds for the administrative penalty, the Board shall apply five
hundred dollars for each previous disciplinary action related to the
same conduct, up to the maximum penalty amount.
(2) Exceptional Disregard for Patient Safety. If the
Board determines that the conduct representing grounds for the administrative
penalty shows exceptional disregard for patient safety by the licensee,
the Board shall apply one thousand dollars to each violation which
shows such disregard, up to the maximum penalty amount.
(3) Offsetting Restitution to Patient. The Board may
reduce the administrative penalty amount assessed upon a showing that
the licensee has paid, or by agreed settlement will pay, an amount
of restitution to the patient. The Board shall not require payment
of other damages or make an estimation of harm in calculation of restitution.
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