22 Tex. Admin. Code § 107.63 - Informal Disposition and Mediation
(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 disposition and mediation.
(b) Informal Disposition. Under Texas
Occupations Code §
263.0065, the Board
may delegate the authority to dismiss or enter into agreed settlement for the
resolution of certain complaints prior to an informal settlement conference.
Texas Occupations Code §
263.007 and §
263.0073 authorize
the Board to resolve complaints by review at an informal settlement
conference.
(c) Scheduling of
Informal Settlement Conference.
(1) Not later
than the 180th day after the date the Board's official investigation of a
complaint is commenced, the Board shall schedule an informal settlement
conference unless good cause is shown by the Board for not scheduling the
conference by that date. The following justifications represent good cause for
Board staff to postpone scheduling an informal settlement conference:
(A) an expert reviewer's delinquency in
reviewing and submitting a report to the Board under Texas Occupations Code
§
255.0067;
(B) a temporary suspension of the license
holder's license under Texas Occupations Code §
263.004;
(C) the filing of a contested case against
the licensee with the State Office of Administrative Hearings to resolve the
complaint;
(D) a pending contested
case against the licensee with the State Office of Administrative Hearings
where Board staff's requested sanction is license suspension or
revocation;
(E) proposed resolution
of the complaint through delegation pursuant to Texas Occupations Code §
263.0065;
(F) a delay for a final judgment resulting
from federal or state criminal charges filed against the licensee for conduct
relevant to the complaint, if conviction for such charges would represent
grounds for license suspension or revocation under the Texas Occupations Code
or Board rules;
(G) a request for
delay from federal, state, or local law enforcement to allow investigation of
potential criminal charges against the licensee for conduct relevant to the
complaint, if conviction for such charges would represent grounds for license
suspension or revocation under the Texas Occupations Code or Board
rules;
(H) delay of the
investigation due to Board staff's inability to locate the licensee or
complainant, or licensee's inability or refusal to provide relevant records for
the Board's investigation; or
(I)
the existence of pending complaints from prior fiscal years which require
resolution at an informal settlement conference.
(2) Requests to reschedule the informal
settlement conference by a licensee must be in writing and shall be referred to
the General Counsel for consideration. To avoid undue disruption of the
informal settlement conference schedule, the following requirements shall be
applied. A request by a licensee to reschedule an informal settlement
conference must be in writing and may be granted only if the licensee provides
satisfactory evidence of the following requirements:
(A) The request must be received by the
agency within five business days after the licensee received notice of the date
of the informal settlement conference, must provide details showing that the
licensee has a conflicting event that was scheduled prior to receipt of notice
of the informal settlement conference, and must show the licensee has made
reasonable efforts to reschedule such event but a conflict cannot reasonably be
avoided.
(B) A request received by
the agency more than five business days after the licensee received notice of
the date of the informal settlement conference must provide details showing
that an extraordinary event or circumstance has arisen since receipt of the
notice that will prevent the licensee from attending the informal settlement
conference. The request must show that the request is made within five business
days after the licensee first becomes aware of the event or circumstance.
Unavailability of the licensee's counsel for the informal settlement conference
date shall not be adequate to show an extraordinary event or circumstance if
the unavailability is due to scheduling conflicts with counsel's other clients
or matters not related to counsel's representation of the licensee.
(3) A request by a licensee to
reschedule an informal settlement conference based on the failure of the agency
to send timely notice before the date scheduled for the informal settlement
conference shall be granted, provided that the request is received by the Board
within five business days after the late notice is received by the licensee and
the licensee provides sufficient proof that the notice was not timely delivered
to the licensee's address of record on file with the Board.
(d) Informal Settlement
Conference.
(1) Two or more members of the
Board or the Dental Review Committee shall represent the full Board at the
informal settlement conference, and at least one panelist must be a dentist. At
least one member of the representative panel shall be present in person, but
other members of the panel may appear via teleconference.
(A) Notwithstanding subsection (d)(1) of this
section, an informal settlement conference may be conducted by one panelist if
the license holder who is the subject of the complaint waives the requirement
that at least two panelists conduct the conference. If the license holder
waives that requirement, the panelist may be a dentist, a dental hygienist, or
a member who represents the public. If the licensee attends the scheduled
informal settlement conference and, after being informed of the requirements of
Texas Occupations Code §
263.0072, does not
object during the scheduled time of the conference to the lack of two panel
members, the licensee shall have waived the requirement for purposes of that
complaint's proceedings.
(B)
Pursuant to Texas Occupations Code §
263.0072(e),
an informal settlement conference conducted under Texas Occupations Code §
263.007 to show
compliance with a Board order or remedial plan of the Board may be conducted by
one panelist.
(2) The
Board will provide the licensee notice in writing of the time, date, and place
of the settlement conference not later than the 45th day before the date the
conference is held. Such notification shall inform the licensee: of the
specific allegations against the licensee and the information board staff
intends to use at the informal settlement conference; that he or she may be
represented by legal counsel; that the licensee may offer a rebuttal to the
allegations, including the exhibits or the testimony of such witnesses as he or
she may desire; that the 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 according to procedures described in Texas Occupations
Code §
263.007. The Board's
rules or policies 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 first class United States Mail or
overnight courier to the address of record of the licensee on file with the
Board or the licensee's attorney of record. An electronic copy of the notice
and enclosures may be provided if the license holder or the license holder's
representative consents to such electronic notice. A settlement conference may
be rescheduled if Board staff does not provide adequate notice as required by
this subsection. Delivery of the notice is presumed to have occurred three
business days after the deposit of the notice with the United States Postal
Service, one business day after deposit of the notice with an overnight
courier, or immediately upon sending if the notice is provided
electronically.
(3) The licensee
must provide to Board staff his rebuttal not later than the 15th day before the
date of the conference in order for that information to be considered at the
conference.
(4) 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
settlement conference will be conducted by representatives of the Board. The
Board's representatives may call upon the Board's attorney at any time for
assistance in conducting the settlement conference. The licensee, his or her
attorney, representative(s) of the Board, and 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.
(5) The Board's
representatives 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.
(6) The Board's
representatives shall exclude from the settlement conference all persons except
the patient or other witnesses; the licensee and his or her attorney; the
complainant; Board members; and Board staff. Complainants and licensees shall
not be present in the informal settlement conference at the same time unless
both parties consent, and the Board's representatives may exclude parties at
any time to ensure the conference proceeds efficiently and with appropriate
decorum.
(7) At the conclusion of
the settlement conference, the Board's representatives 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 Texas Occupations Code §
263.002 or a
remedial plan authorized by § 263.0077 of the Dental Practice Act. The
Board's representatives may, on the basis that a violation of the Dental
Practice Act or the Board's rules has not been established, dismiss the
complaint. Dismissal of a complaint by the Board's representatives shall be
adopted after presentation to the full Board for an affirmative vote. A
recommendation to dismiss a complaint requires no further action by the
Respondent.
(8) Board staff shall
draft a proposed settlement agreement or remedial plan reflecting the
settlement recommendations, which the licensee shall either accept or reject.
To accept the settlement recommendations, the licensee must sign the proposed
agreed settlement order or remedial plan and return it to the Board. Inaction
by the licensee shall constitute rejection. If the licensee rejects the
proposed agreed settlement order or remedial plan, the matter shall be referred
to SOAH for a contested case hearing.
(9) Following acceptance and execution of the
proposed agreed settlement order or remedial plan by the licensee, said
proposed order shall be submitted to the entire Board for approval.
(10) On request of the licensee, Board staff
shall make a recording of the conference. The recording is part of the
investigative file and may not be released to a third party. Board staff may
charge the licensee a fee to cover the cost of recording the conference. Board
staff shall provide a copy of the recording to the licensee on the licensee's
request.
(e) Use of
Mediation in Contested Disciplinary Matters.
(1) The Executive Director or General Counsel
may refer a contested disciplinary matter to a mediation process to seek
resolution or correction of any alleged violations of the Dental Practice Act
or of the Board rules. Such mediation processes may include any procedure
described in the SOAH Rules of Procedure. Referral to mediation may occur prior
to or simultaneous with a contested case filed at SOAH.
(2) Any agreement or recommendation resulting
from the application of a mediation process to a contested disciplinary matter
shall be documented in written form and signed by the licensee, and a
representative of the Board and/or the Executive Director. Such an agreement or
recommendation may include any actions authorized by Chapter 263 of the Dental
Practice Act.
(3) If the mediation
process results in no agreement or recommendation, the matter shall be referred
to SOAH for a contested case hearing.
(f) Consideration by the Board.
(1) All proposed agreed settlement orders,
remedial plans, agreements or other recommendations shall be reviewed by the
full Board for approval.
(2) Upon
an affirmative majority vote, the Board shall enter an order approving the
proposed agreed settlement order, remedial plan, agreement, or recommendation.
Said order shall bear the signature of the Presiding Officer and Board
Secretary, or of the officer presiding at such meeting.
(3) If the Board does not approve a proposed
settlement order, remedial plan, agreement, or recommendation, the licensee
shall be so informed. The matter shall be referred by the Board to the Board
Secretary and Executive Director for consideration of appropriate
action.
(g) Restitution.
(1) 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.
Notes
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