Texas State Board of Dental Examiners : Disciplinary Process

The Texas State Board of Dental Examiners (TSBDE) has provides a range of information regarding the agency and its operation. Licensees and others who are interested in the disciplinary process of the Dental Board will find the agency provides a considerable amount of information. Their complaint and disciplinary process is fairly well set out.

Their website confirms that the processing of complaints filed with the State Board of Dental Examiners (Board) is governed by Chapter 255, Title 3, Occupations Code, effective September 1, 2003, and Rules 107.00 through 107.103 of the Board’s Rules.

The Enforcement Division’s responsibilities are also explained and an overview of the Division provided. The agency notes that the Enforcement Division is comprised of 11 employees who are responsible for the preliminary investigation of complaints. These eleven agency personnel include: the Director of Enforcement, eight investigators and two administrative technicians. The investigators are not limited to Austin, but are also based several other cities as well. The Division investigates complaints against dentists, dental hygienists, and dental laboratories. It assists other entities that enforce laws against unlicensed practice.

The Enforcement and Disciplinary process are summarized by the agency and described as typically consisting of six steps:

• “Intake and Assessment – All complaints, which should be in writing, are acknowledged within 30 days. Every complaint is assigned a priority classification. Priority One represents more serious allegations of violations, including patient death, patient injury, practicing without a license, and unsanitary conditions. Priority Two represents less serious threats to the public welfare, including records-keeping and advertising violations. Each complaint is reviewed to determine whether the Board has jurisdiction, or the authority to act. If the allegations raise an issue addressed by the Dental Practice Act and/or the Board’s Rules, then the Board has jurisdiction and an investigation must be initiated. There are six categories of complaints, defined as:
  • Quality of Care: failure to treat a patient according to the standard of care in the practice of dentistry or dental hygiene.
  • Sanitation: failure to maintain the dental office or dental laboratory in a sanitary condition.
  • Professional Conduct: violations arising out of the day-to-day practice of dentistry, not including purely administrative requirements.
  • Administration: failure to follow the administrative requirements of the Dental Practice Act and the Board’s Rules.
  • Dental Laboratories: violations of the Dental Practice Act and/or the Board’s Rules pertaining to the operations of dental laboratories.
  • Business promotion: violations arising out of efforts to obtain business, such as advertising and referral schemes.
• Investigation – When an investigation is opened, an investigator is assigned to determine the circumstances of the incident. The Complainant will be contacted for further explanation and clarification of the complaint. The dentist against whom a complaint is brought, “Respondent,” is forwarded a copy of the complaint and is asked to send a complete copy of the patient’s records to the Board. The Respondent may provide an explanation of the circumstances, if desired. Compliance with the request for records is mandatory, under Rule 108.8. If the complaint involves quality of care issues, second opinions will be obtained when available. When all the documentation is gathered the investigator prepares a summary report, which is forwarded to the Board Secretary for review.
• Review – Upon completion of the investigation, the Secretary may:
  • Return the case for further investigation;
  • Refer the case to an informal settlement conference;
  • Refer the case directly to the State Office of Administrative Hearings;
  • Close the case.
• Formal and Informal Meetings – If, in the Secretary’s opinion, the complaint presents a possible violation of the Dental Practice Act or Board Rules, the case will be referred to an informal settlement conference or to a formal hearing. Most complaints are resolved at a settlement conference, which provides an opportunity for the Complainant and Respondent to explain their positions to a three-member panel, comprised of Board members. If the panel thinks that the facts constitute a violation, then a Board Order will be proposed. The Respondent has 30 days after receipt to accept or reject the proposed order. If the proposed order is not accepted, the matter will be set for formal hearing at the State Office of Administrative Hearings. A Notice of Hearing will be provided and an Administrative Law Judge (ALJ ) will conduct a hearing and issue a Proposal for Decision, which includes findings of fact. If the ALJ finds that a violation has occurred, the Board will issue an order imposing an appropriate punishment.
• Final Orders – Final decisions, whether they resulted from informal settlement conference or formal hearing, are voted upon by the Board and formalized by a Board Order.
• Compliance – All final orders are monitored to ensure compliance, including completion of additional continuing education and payment of fines.

Although a dentist is not obligated to respond in writing to a complaint, such a response is strongly encouraged. A respondent will be provided a copy of the complaint and it is helpful if the response addresses the issues raised in the complaint.

The Board also encourages informal resolution of a complaint through continuing communication between the dentist and the complainant.”

Some defense attorneys will recommend mediation on an unresolved case. The defense bar will also point out the licensee’s right to contest the Board’s decision after a contested case by filing a motion for rehearing and then proceeding to district court if relief is not granted by the Board. The dentist who contests a case through SOAH usually becomes subject to unilateral disciplinary action, but does have a chance to meet some very short deadlines to ask for a rehearing and, if that is denied, to appeal the case in Travis County District Court. It is important to act quickly and follow the law carefully to preserve the right to appeal. Usually, all administrative remedies must be exhausted before the case goes to court. Appeals can go all the way to the Texas Supreme Court and conceivably through the federal court system in rare instances depending on the issues. It is important to keep in mind that courts will typically not change an agency’s decision, but frequently defer to the presumed expertise of the agency. If the courts disagree with the agency, they send the case back for reconsideration by the agency (reverse and remand) rather than make their own decision (reverse and render).