|(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
(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
(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
(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