The mission of the Texas State Board of Dental Examiners (Texas Dental Board) is to “protect the public health and safety and promote high quality and safe dental care by providing enforcement, licensing, peer assistance, and related information services to licensees and their patients.” The Texas Dental Board is responsible for overseeing the actions of dentists, dental hygienists, registered dental assistants, dental laboratories and mobile dentistry facilities. Unfortunately, the level of regulatory enforcement placed on licensees has significantly increased in recent years. To a significant extent, this is the result of increased funding and due to a revitalization in the way complaints are investigated and processed, to bring it more in line with the way the Texas Medical Board handles complaints. The purpose of this article is to discuss the complaint process utilized by the Texas Dental Board.
I. Regulatory Authority Governing the Processing of Complaints Against a Licensee, Dental Lab or Mobile Facility:
Complaints filed with the Texas Dental Board against a dentist, dental hygienist, dental assistant, dental lab or mobile dentistry facility are governed by the regulations set out in Title 22, Part 5, Chapter 107, Subchapter B, §107.100 through §107.109, of the Texas Administrative Code, effective September 6, 2016.
II. Responsibility for Processing and Investigating a Complaint to the Texas Dental Board:
Working under the supervision of the Dental Director, the Investigations Division has been delegated the responsibility to process and investigate complaints that are received by Texas Dental Board or generated within the agency against dentists, dental hygienists, registered dental assistants, dental laboratories and mobile dentistry facilities. If the complaint at issue related to “professional competency,” the Dental Practice Division is required to assist in the preliminary investigation.
III. Preliminary Investigation of a Complaint to the Texas Dental Board:
When a complaint is first received by the agency, it undergoes a “preliminary investigation.” There are three preliminary determinations that must be made at this time.
(a) How does the Texas Dental Board determine whether the Board has “jurisdiction” over the allegations in a specific complaint?
In order for the Texas Dental Board to have jurisdiction over the complaint, the allegations must set out conduct that, if true, would represent a violation of the Dental Practice Act or the Texas Dental Board’s Rules. Notably, there is effectively an administrative statute of limitations on how long a conduct that is the subject of a complaint can be actionable. As set out under Rule §107.103(b):
“A complaint is not jurisdictional if the complaint is received by the agency after the fourth anniversary of the date the act that is the basis of the complaint occurred; or the complainant discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of the act that is the basis of the complaint.”
To the extent that the Texas Dental Board is determined to exercise jurisdiction over the complaint, board staff are supposed to complete their preliminary investigation of the allegations within 60 days of the date it was filed (received) by the agency. Allegations involving a breach of the standards of care must be reviewed by both Investigations Division and Dental Practice Division staff.
(b) Does the continued practice by the licensee represent a “clear, imminent, or continuing threat to a person’s physical health or well-being” in light of the allegations presented in the complaint?
If it is determined that the licensee’s continued practice does, in fact, represent a clear, imminent or continuing threat to a person’s physical health or well-being, the complaint will typically be sent to the suspension panel of the Texas Dental Board and a temporary suspension of the individual’s license will likely be ordered in accordance with §263.004 of the Dental Practice Act.
(c) Is there probable cause to justify the commencement of an official investigation against the subject of the complaint?
In other words, are the allegations presented in the complaint such that a reasonably intelligent and prudent person would tend to believe that there is sufficient evidence to believe that a violation of the Texas Dental Practice Act or Texas Dental Board Rules has occurred?
(d) Assuming that each of the above determinations are properly answered, the complaint will continue to be worked.
Normally, at this step in the process, a board staff member in the Investigative Division of the Texas Dental Board will contact the licensee who is the subject of the complaint (also commonly referred to as the respondent). Any information or response to the allegations presented provided by the respondent at this step in the process will be added to casefile.
This is perhaps the most important point in the case for the licensee, in terms of making an initial presentation to the Investigator for the Board and ensuring that his / her rights are fully protected. It is imperative that you engage experienced health law counsel to assist you at this point in the proceedings. You will have one opportunity to present your arguments at the informal stage and attempt to show the Investigator that the allegations presented are without merit.
IV. Components of the Complaint Casefile:
When assembling the casefile, the Investigator assigned to conduct the initial review of the allegations is required to assemble the following additional documents for inclusion in the casefile, along with the complaint:
- The history of the respondent collected and maintained by the agency;
- The history of the respondent maintained by the National Practitioner’s Data Bank;
- Whether the respondent is a participant in the state Medicaid program and whether the allegations made in the complaint involve services provided under the state Medicaid program, for reporting purposes pursuant to §254.012 of the Act; and
- Medical and dental records, as needed.
Once the preliminary investigation of complaint is concluded, board staff are required to determine whether or not to initiate an official investigation of the complaint that has been filed. If a matter (where the Texas Dental Board has determined that the Board does have jurisdiction to consider the allegations) is closed during the preliminary investigation and does not advance to the level of an official investigation, it is consideration to be “Jurisdiction – Not Filed.”  In contrast, if the complaint proceeds to the official investigation stage, it is considered to be a “Jurisdiction – Filed” complaint.
If board staff handling the preliminary investigation fails to complete the review within 60 days of receiving the complaint, the board’s official investigation of the complaint is deemed to have commenced on the 60th day and the complaint is considered to be a “Jurisdiction – Filed” complaint.
V. Initiation of an Official Investigation of a Complaint to the Texas Dental Board:
If a complaint is determined to require an official investigation, the Board will notify both the individual or entity that filed the complaint and the respondent (licensee) that an official investigation has commenced. Depending on the nature of the allegations presented, the Board may choose to also refer the complaint to a panel of experts for review. Effective September 1, 2016, official complaints are classified into one or more of the following allegation categories:
Standard 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 in a sanitary condition.
Dishonorable Conduct: unprofessional or dishonorable conduct, including conduct identified in §108.9 of this title (related to Dishonorable Conduct).
Administrative: failure to comply with administrative requirements of the Act or board rules.
Business Promotion: failure to comply with the requirements of the Act or board rules relating to advertising and referral schemes.
Practicing Dentistry without a License.
Non-compliance: failure to comply or timely comply with an Order or Remedial Plan issued by the board.
In addition to designating complaints into allegations categories, the Board staff will also assign a “priority” classification to each complaint:
Priority 1 Complaints. The most serious allegations, especially those that may constitute patient harm, are classified as Priority 1. This priority level also covers licensee impairment, serious criminal activity, inappropriate contact with a patient, and other allegations determined by the Director of Investigations to require an expedited investigation or consideration of temporary suspension pursuant to §263.004 of the Dental Practice Act.
Priority 2 Complaints. This priority level typically includes record-keeping violations, administrative violations, allegations of practicing dentistry without a license (where no serious patient harm is alleged), and other allegations that do not allege serious patient harm.
VI. Responding to a Request for Dental Records from the Board:
Upon request by the Board, a custodian of dental records is required to provide copies of dental records. In rare occasions, the Board may ask that original records be provided. The Board may require that dental records be immediately submitted to the Board for its examination if there is a concern that the records might otherwise go missing, be lost, damaged or destroyed.
By regulation, a licensee is required to respond in writing to all written board requests for information within ten days of receipt of such request.
VII. Failure to Comply with a Request for Information or a Request for Records from the Texas Dental Board:
Under the Dental Practice Act, there are a number of available sanctions (ranging from administrative to criminal penalties), that the Board may seek to impose against a licensee if he or she refuses to comply with a request for information or fails to respond to a request for dental records.
Administrative Penalty . Failure to comply with board staff’s request for records or information may be grounds for the issuance of an administrative penalty citation pursuant to §254.0115 of the Act. Please keep in mind, an administrative penalty citation is considered to be a public record. However, it is not considered to be a restriction or limitation on the license or registration of a licensee – as such, it is not reportable to the National Practitioner Data Bank.
Disciplinary Action. Failure to comply with board staff’s request for records or information may be unprofessional and dishonorable conduct that is subject to disciplinary action by the board pursuant to §263.002 of the Act.
Civil Penalty. Failure to comply with board staff’s request for records and other evidence or failure to comply with other law regulating dental patient records may be subject to a civil penalty pursuant to §258.0511 and §264.101 of the Act.
Criminal Penalty. Failure to comply with board staff’s request for records and other evidence or failure to comply with other law regulating dental patient records, in violation of §258.0511, is a criminal offense pursuant to §264.152 of the Act.
VIII. Disposition of a Filed Complaint Where a Dental Review Panel has Been Assigned:
As previously noted above, if one or more of the allegations in a complaint are related to the professional competence of a licensee, a Dental Review Panel is assigned to assist with the determination of whether a respondent has violated the Dental Practice Act or another Board rule.
In such cases, the assigned Dental Review Panel will prepare a report and set out their findings and whether a violation of the Dental Practice Act or an applicable Board rule has occurred. In light of the panel’s findings, Board staff will then initiate the appropriate action, including dismissal with board recommendation, disciplinary action, remedial plan, or cease and desist order, and obtain final approval of the board at a public board meeting, if required.
If the Dental Review Panel determines that the information and evidence gathered in the investigation is insufficient to show that a violation of the Dental Practice or a Board rule has taken place, the Board staff will dismiss the complaint and advise the Board of the dismissal action at a public board meeting. When a complaint is dismissed in this fashion, both the person or entity that filed the complaint and the licensee will be notified of the dismissal and the reasons for the action by letter.
IX. Determining the Proper Level of Discipline to Take, if Any:
As the various levels of discipline described in Section V above reflect, the Board has a fair amount of discretion in deciding a licensee’s fate. Aggravating factors that are supposed to be considered include:
- Harm to one or more patients;
- The severity of patient harm;
- One or more violations that involve more than one patient;
- Economic harm to any individual or entity and the severity of such harm;
- Increased potential for harm to the public;
- Attempted concealment of the act constituting a violation;
- Intentional, premeditated, knowing, or grossly negligent act constituting a violation;
- Prior similar violations;
- Previous disciplinary action by the Board, any government agency, peer review organization, or health care entity;
- Violation of a Board Order; or
- Other relevant circumstances increasing the seriousness of the misconduct.
While the presence of aggravating factors will likely enhance the severity of the discipline imposed by the Board, to the extent that mitigating factors are present, the level of disciple imposed on a licensee discipline may be reduced. Mitigating factors that are supposed to be considered include:
- Self-reported and voluntary admissions of violation(s);
- Implementation of remedial measures to correct or mitigate harm from the violation(s);
- Acknowledgment of wrongdoing and willingness to cooperate with the Board, as evidenced by acceptance of an Agreed Order;
- Rehabilitative potential;
- Prior community service and present value to the community;
- Other relevant circumstances reducing the seriousness of the misconduct; or
- Other relevant circumstances lessening responsibility for the misconduct.
X. Non-Disciplinary, Remedial Actions that May be Used by the Board:
Under limited circumstances, the Board may choose to issue and implement a non-disciplinary remedial plan to resolve the investigation of a complaint against a licensee. Remedial plans are considered to be public information. Importantly, a remedial plan cannot include a provision that revokes, suspends or restricts an individual’s license or registration to practice dentistry or dental hygiene. Moreover, a remedial action cannot include an administrative penalty against the licensee.
By regulation, a remedial plan cannot be utilized to resolve a complaint in a case involving a patient’s death, the commission of a felony or any matter where the licensee engaged in inappropriate sexual behavior or contact with a patient. Similarly, it cannot be imposed in a case involving a complaint where a licensee became personally or financially involved with a patient in an inappropriate fashion.
Unfortunately, if a licensee has previously been a issued a remedial plan to resolve a complaint, the licensee is only permitted one bite at the proverbial apple. The Board may not issue a remedial plan if the licensee was previously granted such a plan in a different complaint.
XI. Moving Forward in a Disciplinary Case Against a Licensee:
Even if a complaint is advanced to the official investigation stage, there is often an opportunity for a licensee to resolve the matter in an informal settlement conference. In such a conference, the licensee is usually required to meet with a three-member panel of Board members and lay out the reasons why no action should (or limited action) should be taken. After hearing the arguments presented, the panel may issue a “Proposed Order” which sets out the terms by which a licensee can resolve the matter. Take care before signing a Proposed Order. Depending on the nature of the settlement, it may subject the licensee to collateral action by other state and / or federal authorities. It may also result in administrative action being taken by one or more private payors against the licensee. Finally, the settlement may constitute an adverse action that is reportable to the National Practitioner Data Bank.
If the panel and the licensee cannot work out an agreeable informal settlement, the matter will be set for a formal hearing before the State Office of Administrative Hearings (SOAH). An Administrative Law Judge (ALJ) will be assigned to hear the case and the case will proceed through the administrative litigation process. At the conclusion of this stage, the ALJ will issue a Proposed Decision. To the extent that an ALJ concludes that a violation of the Dental Practice Act or another Board rule occurred, the Board will review the ALJ’s ruling and issue a Final Order imposing an appropriate level of discipline.
Should a licensee be dissatisfied with an ALJ’s Proposed Decision, there is an opportunity to file a request for a rehearing. If that request is denied, the license may appeal the case in Travis County District Court. Appeals can be further advanced to the Texas Supreme Court. Nevertheless, it is important to keep in mind that the courts will tend to give great deference to the administrative agency ruling and how an agency interprets its rules. Even if you prevail in the courts, in most instances, the case will be reversed and remanded back to the agency for reconsideration.
The administrative complaint process utilized by the Texas Board of Dental Examiners against dentists, dental hygienists, registered dental assistants, dental laboratories and mobile dentistry facilities, is highly complex. If a complaint has been issued against your Texas license, we strongly recommend that you retain experienced health law counsel to represent you. Liles Parker attorneys are skilled in representing dentists and other dental licensees in state disciplinary proceedings. Are you facing a complaint? Contact us for a free consultation. We can be reached at: 1 (800) 475-1906.
 Importantly, if the Texas Dental Board concludes that the complaint should be closed and does not advance the complaint to the official investigation stage, it is required to provide notice of this decision to the complainant. A dissatisfied complainant may appeal the Texas Dental Board’s decision and the appeal will be considered by the Board in a public meeting. The complainant has the right to personally appear before the Board considering the appeal. If the Board grants an appeal, the original complaint remains closed and a new complaint is opened and processed by Texas Dental Board as an official investigation.
 With the advent of electronic medical records, it is becoming less and less common for a dental practice to have original, hand-written records. To the extent that original records are sought, the Board may be concerned that dental records have been falsified or altered in some way and therefore desire to examine the original documents.
 Under § 264.0115 of the Dental Practice Act, the Board is permitted to assess administrative penalties against persons licensed or regulated under the Act for violations of the Act that do not involve the provision of direct patient care.
 Please note however, the regulations do permit the Board to assess a fee against the licensee participating in a remedial plan to cover the administrative costs incurred in administering the plan.
 The regulations do not define this particular requirement any further and could be subject to varying interpretations by the Board.