22 Tex. Admin. Code § 107.103 - Preliminary Investigation of a Complaint
(a) Each complaint received by the agency
undergoes a preliminary investigation. The preliminary investigation determines
the following:
(1) whether the board has
jurisdiction over the complaint;
(2) whether the continued practice by a
licensee/registrant or the continued performance by a licensee/registrant of a
procedure for which the person holds a license or registration would constitute
a clear, imminent, or continuing threat to a person's physical health or
well-being; and
(3) whether there
is probable cause to justify commencement of an official investigation.
(b) Determination of
jurisdiction. A complaint is jurisdictional if it alleges conduct, that if
true, would constitute a violation of the Act or board rules. A complaint is
not jurisdictional if the complaint is received by the agency after the fourth
anniversary of the date the act that is the basis of the complaint occurred; or
the complainant discovered, or in the exercise of reasonable diligence should
have discovered, the occurrence of the act that is the basis of the complaint.
A complaint that is closed in the preliminary investigation because the board
has no jurisdiction over the complaint is a "Dismissed-Non Jurisdictional"
complaint.
(c) If the board has
jurisdiction over the complaint, board staff shall complete the preliminary
investigation of the complaint not later than the 60th day after the date the
agency received the complaint. If the complaint alleges a violation of the
standard of care, board staff conducting the preliminary investigation of the
complaint shall be or shall consult with a licensed dentist or dental hygienist
who is a member of the Dental Practice Division or a member of the board.
(d) In the preliminary
investigation, board staff shall determine whether the continued practice by a
licensee/registrant or the continued performance by a licensee/registrant of a
procedure for which the person holds a license or registration would constitute
a clear, imminent or continuing threat to a person's physical health or
well-being. If such determination is made, board staff may refer such complaint
to the suspension panel of the board for a temporary suspension pursuant to
§263.004 of Act.
(e) In the
preliminary investigation, board staff may make reasonable efforts to contact
the complainant concerning the complaint. Any additional information received
from the complainant will be added to the information maintained on the
complaint.
(f) In the preliminary
investigation, the respondent may be given the opportunity to respond to the
allegations. If the respondent is given this opportunity, the response must be
received within the time prescribed by board staff. Any additional information
received from the respondent will be added to the information maintained on the
complaint.
(g) In the preliminary
investigation of each jurisdictional complaint, the following minimum
additional evidence will be gathered by the Investigations division:
(1) The history of the respondent collected
and maintained by the agency;
(2)
The history of the respondent maintained by the National Practitioner's Data
Bank;
(3) Whether the respondent
is a participant in the state Medicaid program and whether the allegations made
in the complaint involve services provided under the state Medicaid program,
for reporting purposes pursuant to §254.012 of the Act; and
(4) medical and dental records, as needed.
(h) At the conclusion
of the preliminary investigation of a jurisdictional complaint, board staff
shall determine whether to commence an official investigation of the complaint.
A jurisdictional complaint that is closed during the preliminary investigation
without proceeding to an official investigation is considered
"Jurisdictional-Not Filed." A complaint that proceeds to an official
investigation is considered a "Jurisdictional-Filed" complaint.
(i) If board staff fails to complete the
preliminary investigation within 60 days of receiving the complaint, the
board's official investigation of the complaint commences on the 60th day, and
the complaint is considered a "Jurisdictional-Filed" complaint.
(j) Appeal. Following the receipt of the
notice that a complaint has been closed during the preliminary investigation as
a "Jurisdictional-Not Filed" complaint, the complainant may appeal the closure
of the complaint to the board.
(1) To be
considered by the board, the appeal must:
(A)
be submitted in writing to the agency;
(B) received by the agency no later than the
45th day after the mailing date of the notice of closure of the
Jurisdictional-Not Filed complaint; and
(C) list the reason(s) for the appeal,
providing sufficient information to indicate that an official investigation is
warranted.
(2) Review
of an Appeal. Appeals will be considered by the board in a public meeting. The
board shall determine one of the following:
(A) The appeal is denied;
(B) Additional information must be obtained
before a determination on the appeal can be made; or
(C) The appeal is granted.
(3) Personal Appearances. The
complainant has the right to personally appear before the board considering the
appeal. This appearance must be scheduled through agency staff. This appearance
may be limited in time and scope by the presiding officer of the board.
(4) Notice. The complainant shall
be notified of the board's decision concerning the appeal.
(5) Appeals Limited. Only one appeal shall be
allowed for each complaint.
(6)
Granted Appeals. If the board grants an appeal, the original complaint remains
closed, and a new complaint is opened to officially investigate the complaint.
The official investigation of the new complaint commences on the date the board
grants an appeal.
Notes
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