1. (a) Dismissal.

   1. (1) The director of enforcement may recommend dismissal of a complaint if an investigation fails to reveal a violation.
   2. (2) If the director of enforcement recommends dismissal of a complaint, he or she shall state, with specificity, the reason or reasons for the recommended dismissal.
   3. (3) A complaint recommended for dismissal by the director of enforcement shall be reviewed by a member of the enforcement committee. For complaints involving patient morbidity, professional conduct, or minimum standard of care, the reviewer must be a dentist member of the committee.
   4. (4) If the committee member does not recommend dismissal, the complaint shall be forwarded to an informal settlement conference. If the committee member agrees that the complaint should be dismissed, then the dismissal shall be final.
   5. (5) All jurisdictional complaints shall be investigated. No complaint shall be dismissed without appropriate consideration.
   6. (6) If a complaint is dismissed, the SBDE shall notify the complainant within ten days of the date of the dismissal. The notice of dismissal must be in writing, include the reason(s) for the dismissal and inform the complainant of the right to appeal the dismissal. An appeal under this section shall be considered a request for reconsideration of the dismissed complaint.
   7. (7) All complaints dismissed under this section must be reported to the full board in a public meeting of the board.

2. (b) Appeal.

   1. (1) The SBDE may hear an appeal in a dismissed complaint only if new information or evidence is presented, the acceptance of such, if taken as true, supports the original complaint.
   2. (2) The complainant must request reconsideration of a dismissed complaint in writing, postmarked no later than twenty days from the date of receipt of the SBDE's dismissal letter. The complainant is presumed and deemed to be in receipt of the dismissal letter on the third day after the date on which the dismissal letter is mailed.
   3. (3) A request for reconsideration of a dismissed complaint shall not be considered by the SBDE unless it is timely submitted.
   4. (4) A request for reconsideration must contain the requirements specified in this subsection.
   5. (5) Requests meeting the requirements of this subsection shall be heard by the professional evaluation committee no later than sixty days after the date the SBDE receives the request from the complainant requesting reconsideration. This time frame may be extended upon good cause shown by the SBDE. If the professional evaluation committee meets to reconsider the complaint after this sixty-day period, the SBDE shall notify the complainant in writing.
   6. (6) This subsection does not apply to complaints dismissed by the full board pursuant to a recommendation from an informal settlement conference panel.
   7. (7) All complaints dismissed by the full board may be appealed in accordance with the Government Code.

3. (c) Professional evaluation committee.

   1. (1) The professional evaluation committee shall consist of three board members appointed by the presiding officer of the board, one of who must be a public member.

   2. (2) Complaints referred to the professional evaluation committee by the board secretary or the board secretary's designee may be dismissed, referred to an informal settlement conference or returned to the director of enforcement for further investigation. The professional evaluation committee may also propose an agreed board order imposing sanctions. All board orders proposed by the professional evaluation committee shall include a statement that the respondent should not agree to the order if he or she wants to explain any part of his or her conduct in connection with the complaint.

      1. (A) Meetings of the professional evaluation committee are open meetings as defined by the Open Meetings Act;
      2. (B) Only professional evaluation committee members and SBDE staff may participate in discussions concerning any complaint. The members may review and consider all information in the investigative file.
      3. (C) All determinations reached by the professional evaluation committee involving reconsideration of an earlier dismissal by the SBDE are final.

Source Note:The provisions of this §107.103 adopted to be effective May 26, 2005, 30 TexReg 3018; amended to be effective November 27, 2005, 30 TexReg 7742.