(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 and alternative dispute resolution procedures. [Pursuant to the Government Code, Chapter 2001 et seq., ultimate disposition of any complaint or matter pending before the Board may be made by stipulation, agreed settlement, or consent order. Such informal dispositions will facilitate the expeditious change or correction of dental practice patterns which constitute violations of the Dental Practice Act or the rules of the Board.] (b)[(1)] Approval. The Board Secretary [secretary] or executive director shall determine if the public interest would be served by offering to resolve a complaint or other matter pending before the Board by either informal disposition as described in Chapter 2001 et. seq., of the Government Code, or by a method of alternative dispute resolution under Chapter 2009 of the Government Code, [stipulation, settlement agreement, or consent order] in lieu of a formal disciplinary proceeding described in the [Texas Civil Statutes,] Occupations Code, [ Chapter 263,] §263.003. [If the secretary or executive director approves the matter for possible resolution by stipulation, agreed settlement, or consent order, the licensee and other persons shall be notified as provided in this section.] [(2)Procedure. Upon referral by the secretary or executive director of a complaint or other matter for possible resolution by stipulation, agreed settlement, or consent order, the following procedure shall be followed.] (c)Informal Disposition. Pursuant to the Government Code, Chapter 2001 et. seq., ultimate disposition of any complaint or matter pending before the Board may be made by stipulation, agreed settlement, or consent order. Under the Occupations Code, §263.007 and §263.0075, such a disposition may be reached through review at an informal settlement conference, which may take the form of a staff settlement conference or a Board settlement conference. (1)Board Settlement Conference (A)The Board Secretary or executive director may approve a matter for review at a Board settlement conference. (B)[(A)] One or more members of the Board [board] shall represent the full Board [ board] at the Board settlement conference. (C)[(B)] The Board [ board] will provide the licensee notice in writing of the time, date, and place of the settlement conference. Such notification shall inform the licensee: of the nature of the alleged violation; [ ,] that he or she may be represented by legal counsel; [ ,] that the licensee may offer the testimony of such witnesses as he or she may desire; [,] that the Board [ 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 [board] according to procedures described in [Texas Civil Statutes,] Occupations Code, [Chapter 263,] §263.007. A copy of the Board's [board's] rules 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 certified mail, return receipt requested, to the current address of the licensee on file with the Board. (D)[(C)] 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 licensee, his or her attorney, and representative(s) of the Board [ board] and Board [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. Any documentary evidence received by the Board [board] less than 10 days before the scheduled dates of the settlement conference will not be considered by the panel. (E)[(D)] The settlement conference will be conducted by a representative(s) of the Board [board]. The Board's [board's] representative may call upon the Board's [board's] attorney at any time for assistance in conducting the settlement conference. The Board's [board's ] representative(s) may question any witness, and shall afford each participant in the settlement conference the opportunity to make such statements as are material and relevant. (F)[(E)] The Board's [ board's] representative(s) 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. (G)[(F)] The Board's [ board's] representative(s) shall exclude from the settlement conference all persons except witnesses during their testimony, the licensee, his or her attorney, the complainant, Board [board] members, and board staff. (H)[(G)] At the conclusion of the settlement conference, the Board's [board's] representative(s) shall make recommendations to the licensee and consultant 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 the Occupations Code, [Chapter 263,] §263.002[, Texas Civil Statutes]. The Board's [board's] representative(s) may, on the basis that a violation of the Dental Practice Act or the Board's rules has not been established, either close the case [ recommend that the case be closed], or refer the case to Board staff [ the case may be referred to the Board Secretary] for further investigation. Closure of a case by the Board's representative(s) shall be given effect immediately without the necessity of presentation to the full Board. (I)[(H)] [The] Board staff shall draft a proposed settlement agreement reflecting the settlement recommendations, which the licensee shall either accept or reject [ the settlement recommendations proposed by the board representative(s)]. To accept the settlement recommendations [recommendation], the licensee must sign the proposed agreed settlement order [agreement] and return it to the Board within 30 days from receipt. Inaction by the licensee shall constitute rejection. If the licensee rejects the proposed agreed settlement order [agreement], the matter shall be referred to the Board Secretary [secretary ] and executive director for other appropriate disposition. (J)[(I)] Following acceptance and execution of the proposed agreed settlement order [agreement] by the licensee, said proposed order [agreement] shall be submitted to the Board's [board's] legal counsel, and /or executive director for review. (K)[(J)] The settlement proposal will then be submitted to the entire Board [board] for approval. (L)[(K)] A recommendation to close a case requires no further action by the Respondent [prior to its presentation to the Board]. (2)Staff Settlement Conference. (A)The Board Secretary or executive director may approve a matter for review at a staff settlement conference. (B)Staff settlement conferences shall be held by a panel of board employees consisting, at a minimum, of an attorney of the Board, and either the investigator responsible for the case or the Director of Enforcement. A Board member who is able to advise on standard of care issues must participate in any case involving such issues. (C)At the conclusion of the staff settlement conference, the panel 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 the Occupations Code, §263.002. The panel may, on the basis that a violation of the Dental Practice Act or the Board's rules has not been established, either close the case, or refer the case to Board staff for further investigation. Closure of a case by a staff settlement conference shall be given effect immediately without the necessity of presentation to the full Board. (D)Board staff shall draft a proposed settlement agreement reflecting the settlement recommendations, which the licensee shall either accept or reject. To accept the settlement recommendations, the licensee must sign a proposed settlement agreement and return it to the Board within 30 days from receipt. Inaction by the licensee shall constitute rejection. If the licensee rejects the proposed agreed settlement order, the matter shall be referred to the Board Secretary and executive director for other appropriate disposition. (E)Following acceptance and execution of the proposed agreed settlement order by the licensee, said proposed order shall be submitted to the Board's legal counsel, and/or executive director for review. (F)A recommendation to close a case requires no further action by the Respondent. (G)A complainant may appeal the decision to close a case by the staff in accordance with Rule 107.102(h). (d)Alternative Dispute Resolution (ADR). (1)Any ADR procedure used to resolve an internal or external dispute before the Board shall comply with the requirements of Chapter 2009, Government Code, and shall, to the extent possible, comply with any model guidelines issued by the State Office of Administrative Hearings for the use of ADR by state agencies. (2)Use of ADR In Contested Disciplinary Matters. (A)The Board Secretary or the executive director may refer a contested disciplinary matter to an ADR process to seek resolution or correction of any alleged violations of the Dental Practice Act or of the Board rules. Such ADR processes may include: (i)any procedure described by Chapter 154, Civil Practice and Remedies Code; or, (ii)a combination of the procedures described by Chapter 154, Civil Practice and Remedies Code. (B)Any agreement or recommendation resulting from the application of an ADR process to a contested disciplinary matter shall be documented in written form and signed by the licensee, and legal counsel for the Board and/or the executive director or Board Secretary. Such an agreement or recommendation may include any disciplinary actions authorized by the Occupations Code, §263.002. (C)If the ADR process results in no agreement or recommendation, the matter shall be referred to the Board Secretary and executive director for other appropriate disposition. (e)[(3)] Consideration by the Board. (1)All proposed agreed settlement orders, agreements or other recommendations shall be reviewed by the full Board for approval. (2)[(A)] The name and license number of the licensee will not be made available to the board until after the board has reviewed and made a decision on the proposed agreed settlement order, agreement or recommendation. (3)[(B)] Upon an affirmative majority vote, the Board shall [either] enter an order approving the proposed agreed settlement order, agreement, or recommendation [ agreements, or without entry of an order, approve the recommendation to close. ] Said order shall bear the signature of the presiding officer and Board Secretary [president and secretary of the Board], or of the officer presiding at such meeting and shall be included in the minutes of the Board. (4)[(C)] If the board does not approve a proposed settlement order, agreement, or recommendation, the licensee shall be so informed. The matter shall be referred by the Board [board] to the Board Secretary [ secretary] and executive director for consideration of appropriate action. (f)Restitution. (1)Pursuant to the Occupations Code, §263.0075, 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.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 13, 2004
TRD-200401006 Bobby D. Schmidt, M.Ed.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: March 28, 2004
For further information, please call: (512) 475-0972
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