1. (a) Purpose and Construction. The purpose of the this rule is to set forth a procedure for the imposition of an alternative informal assessment of administrative penalty pursuant to §264.0115, Dental Practice Act, for violations identified in §107.202 of this title, Disciplinary Guidelines and Administrative Penalty Schedule, as violations that do not involve the provision of direct patient care by a person licensed or registered under these rules.

2. (b) Notice of Intention to Impose Administrative Penalty, Response.

   1. (1) Before an administrative penalty is imposed under this rule, the board shall provide a licensee/registrant who is alleged to have committed an administrative violation with a Notice of the allegations regarding an administrative violation.

   2. (2) The Notice shall include, at a minimum:

      1. (A) a clear statement of the violation, including a citation to the relevant section of the Board's rules and the Dental Practices Act;
      2. (B) the amount of the penalty assessed for each violation; and
      3. (C) a statement that the cited person may either pay the penalty or appeal the penalty in writing.

   3. (3) The licensee/registrant may respond to the notice as follows:

      1. (A) The licensee/registrant may pay the proposed administrative penalty; or
      2. (B) The licensee/registrant may appeal the penalty in writing.
   4. (4) The licensee/registrant must respond to the Notice within twenty (20) calendar days of receipt by the licensee/registrant of the Notice (if the Notice is presented in person) or within twenty (20) calendar days of the date the Notice is mailed, by certified mail, to the licensee/registrant (if the Notice is mailed).
   5. (5) A report of the payments upon Notice of intention to impose administrative penalties shall be made to the board at the next regular meeting for approval.
   6. (6) A penalty assessed under this section may consist only of a monetary penalty that does not exceed $1,000.00 for each violation. The total amount of penalties assessed against a person under the Alternative Informal Assessment of Administrative Penalty may not exceed $3,000.00 in a calendar year.
   7. (7) A licensee/registrant who is assessed an administrative penalty under this section is entitled to a hearing under Chapter 2001, Government Code.

3. (c) Personal Appearance at an Administrative Penalty Conference.

   1. (1) If, within twenty (20) calendar days of receipt of the Notice (if the Notice is presented in person) or of the date the Notice is mailed to the licensee/registrant (if the Notice is mailed), the licensee/registrant requests, in writing, an appeal of the penalty, an administrative penalty conference may be scheduled pursuant to this rule.
   2. (2) If the licensee/registrant fails to respond to the Notice within twenty (20) calendar days, an administrative penalty conference may be scheduled pursuant to this rule.
   3. (3) At an administrative penalty conference, the panel members may only consider assessing a monetary penalty equal to that imposed by the Alternative Informal Assessment of Administrative Penalty Standard Schedule or dismissal of the matter. The panel may not consider revocation, suspension, or any other sanction.

4. (d) Administrative Penalty Conference Procedure.

   1. (1) Administrative penalty conferences shall be held by a panel of Board representatives consisting, at a minimum, of an attorney of the Board, and either the investigator responsible for the case or the Director of Enforcement, and a member of the Board.
   2. (2) The Board will provide the licensee/registrant notice in writing of the time, date, and place of the administrative penalty conference. Such notification shall inform the licensee/registrant: of the nature of the alleged violation; that he or she may be represented by legal counsel; that the licensee/registrant may offer the testimony of such witnesses as he or she may desire; that the Board may 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 §263.007, Dental Practice Act. A copy of the Board's rules relating to the informal disposition of cases shall be enclosed with the notice of the administrative penalty conference. Notice of the administrative penalty conference, with enclosures, shall be sent by certified mail, return receipt requested, to the current address of the licensee/registrant on file with the Board.
   3. (3) The administrative penalty conference shall be informal and will not follow the procedure established in State Office of Administrative Hearing (SOAH) rules for contested cases. The licensee/registrant, his or her attorney, and the Board representative 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. Any documentary evidence received by the Board less than ten (10) days before the scheduled dates of the administrative penalty conference will not be considered by the panel.
   4. (4) The administrative penalty conference shall be conducted by a representative of the Board. The Board's representative may call upon the Board's attorney at any time for assistance in conducting the administrative penalty conference. The Board's representative may question any witness, and shall afford each participant in the administrative penalty conference the opportunity to make such statements as are material and relevant.
   5. (5) The Board's representative may prohibit or limit access to the Board's investigative file by the licensee/registrant, his or her attorney, and the complainant and his or her representative.
   6. (6) The Board's representative shall exclude from the administrative penalty conference all persons except witnesses during their testimony, the licensee/registrant, his or her attorney, the complainant, Board members, and Board staff.
   7. (7) At the conclusion of the administrative penalty conference, the panel shall either recommend to close the case or impose penalties in accordance with this section. Closure of a case by the panel shall be given effect immediately without the necessity of presentation to the full Board.
   8. (8) The licensee/registrant shall either accept or reject the administrative penalty assessment presented after the meeting. To accept the administrative penalty assessment, the licensee/registrant must sign the penalty assessment and return it to the Board with payment within ten (10) days of the date of the administrative penalty letter. Inaction by the licensee/registrant shall constitute rejection. If the licensee/registrant fails to notify the Board in writing or his/her intent to appeal or to accept the administrative penalty assessment in writing with payment included within ten (10) of receipt of payment, payment shall be considered late and additional fees will be due in accordance with Alternative Informal Assessment of Administrative Penalty Standard Schedule. If the licensee/registrant appeals the administrative penalty assessment, the matter shall be set for a hearing before an Administrative Law Judge (ALJ) at the SOAH.

5. (e) Reports of Imposition of Administrative Penalty.

   1. (1) An imposition of an administrative penalty shall be a public record.
   2. (2) The imposition of an administrative penalty shall not be considered a restriction or limitation on the license of the licensee/registrant and shall not be reported to the National Practitioner Data Bank.
   3. (3) The citation, Notice, a written response or request for personal appearance by the licensee/registrant, any information provided to and any report of a panel of Board representatives, shall remain confidential, in accordance with §254.006, Dental Practice Act.
6. (f) Unpaid Administrative Penalties. If a licensee/registrant fails to pay an administrative penalty by the due date, the Board may set the case for a hearing. An ALJ of the SOAH shall hold the hearing. The ALJ shall make findings of fact and conclusions of law and issue to the Board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty.

Source Note:The provisions of this §107.69 adopted to be effective February 2, 2010, 35 TexReg 631.