22 Tex. Admin. Code § 107.202 - Administrative Penalty Schedule
(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.
Notes
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