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RULE §107.63Informal Disposition and Alternative Dispute Resolution

(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.

(b) Informal Disposition. Pursuant to Texas 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 Texas Occupations Code §263.007 and §263.0075, such a disposition may be reached through review at an informal settlement conference.

(c) Board Settlement Conference.

  (1) One or more members of the Board shall represent the full Board at the Board settlement conference.

  (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 to the address of record of the licensee on file with the Board or the licensee's attorney of record. A settlement conference may be rescheduled if board staff does not provide adequate notice as required by this subsection.

  (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 a representative(s) of the Board. The Board's representative 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 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.

  (6) The Board's representative(s) 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.

  (7) At the conclusion of the settlement conference, the Board's representative(s) 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 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, or refer the case to Board staff 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. A recommendation to close a case 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.

(d) Use of ADR In Contested Disciplinary Matters.

  (1) 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:

    (A) any procedure or combination of procedures described by Chapter 154, Texas Civil Practice and Remedies Code; or

    (B) any procedure described in SOAH Rules of Procedure.

  (2) 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 §263.002 of the Dental Practice Act or a remedial plan authorized by §263.0077 of the Dental Practice Act.

  (3) If the ADR process results in no agreement or recommendation, the matter shall be referred to SOAH for a contested case hearing.

(e) 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.

(f) Restitution.

  (1) Pursuant to Texas 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.

Source Note: The provisions of this §107.63 adopted to be effective July 18, 1989, 14 TexReg 2952; amended to be effective April 19, 1998, 23 TexReg 3831; amended to be effective November 30, 1999, 24 TexReg 10547; amended to be effective May 10, 2004, 29 TexReg 4473; amended to be effective February 24, 2008, 33 TexReg 1546; amended to be effective February 2, 2010, 35 TexReg 631; amended to be effective September 14, 2010, 35 TexReg 8342; amended to be effective December 10, 2013, 38 TexReg 8831

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