McDonald, Mackay and White, LLP

Texas Board of Dental Examiners
Investigations and Disciplinary Actions

By law there are currently fifteen members of the Board, ten are licensed dentists and five are public members.

Investigations

The Board can be aggressive in its investigations and there is a chance of having restrictions placed on a one’s license, which makes the process very serious. It is crucial for dentists (or dental assistants) to understand the Board’s role and what a dentist undergoes during an investigation. The investigation portion of the disciplinary process with the Board starts when the dentist is notified of the investigation by mail, unless doing so would jeopardize the Board's investigation. This letter informs the dentist that he/she has an opportunity to respond to the allegations within thirty days and that they can be represented by an attorney.

The Board’s investigator will request various records pertaining to the allegations, such as medical records, medication logs, witness statements, and other information related to the investigation. Occasionally, the Board investigator will go in person to the dentist’s practice. Once the dentist has responded and the investigator has obtained all pertinent information, the investigator makes a recommendation regarding the allegations and what the evidence has shown. The information obtained by the investigator is presented to senior staff and an ultimate decision is made regarding the disposition of the case. The case may be dismissed, or the case is set for an Informal Conference.

If the issue is regarding impairment, the dentist should be aware of the peer assistance program through the Professional Recovery Network.

Informal Settlement Conference

While this proceeding called an “Informal” Conference, it is not an informal proceeding. The informal means the rules of procedure and evidence do not apply. At the Informal Conference, the allegations and evidence are presented to Board members and those members then ask questions of the dentist. The dentist and his/her attorney are allowed to provide evidence and other mitigating information for the members to take into consideration. After all the information is presented and questions are asked, the members convene separately and discuss the information presented during the Informal Conference. The dentist is then called back into the meeting room and the Board presents their decision. The dentist knows the recommendation prior to leaving the Board’s offices. The recommendations can be a dismissal, or a proposed Agreed Order or the case is referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings [SOAH].

Agreed Orders

If the evidence shows a violation of the Dental Licensing Act or the Board’s rules and regulations, the Board may propose a settlement offer in the form of a proposed Agreed Order. The Agreed Order will state the allegations against the dentist, the sections of the law that have been violated and the restrictions being placed on the individual’s license. The restrictions can be varied and may include educational courses, job restrictions, a fine, employer notifications, supervision requirements, counseling requirements, practice restrictions and other actions deemed necessary. If there are any mitigating factors in the dentist’s case, the severity of the restrictions may be decreased. The length of the Agreed Order can vary depending on individual circumstances. Agreed Order can be negotiated.

If the dentist agrees with the proposed Agreed Order, the dentist signs the Order and the Order is presented to the Board for ratification. The Board may ratify the Order as is, suggest a modification, or reject the Order. If the Board accepts the Order, a final copy of the signed Order is mailed to the dentist and to the dentist’s attorney. The disciplinary action is entered onto the Board’s website and printed in the quarterly newsletter. It is also given to national data banks. All of the Board’s disciplinary actions are public information and become a permanent part of the dentist’s license, which means that even when the stipulations are completed and the dentist’s license becomes “clear”, the dentist will always have a disciplinary action record.

SOAH Hearings

The hearing process begins with the filing of Formal Charges with SOAH and sets a hearing date. Hearings are similar to trials except that the proceeding is before an Administrative Law Judge instead of a judge/jury and some of the evidence and procedural rules are different. The Board has the burden to prove the allegations against the dentist and the dentist is allowed to present his/her side of the case. After the completion of the hearing, the Judge will issue his or her proposal for decision, which contains findings of fact and conclusions of law and recommended actions. This proposal for decision is presented to the Board and the Board either accepts the Judge’s recommendations or the Board rejects all or part of the Judge’s recommendations and substitutes their own, in limited circumstances. The recommendations may be a dismissal, or proposed restrictions on the dentist’s license, a suspension of the dentist’s license, or a revocation of the dentist’s license. If a dentist disagrees with either the SOAH Judge or the Board’s substituted Order, the dentist may appeal the process to District Court.

This can be a timely and burdensome process. It is wise to be prepared and assistance of an attorney knowledgeable in this process to help you navigate these difficult processes preserves your rights and protects your livelihood.