1. (a) Procedures and amount(s) for administrative penalties portrayed in this rule may be imposed on a licensee or registrant for violation(s) of the Dental Practice Act and/or Board rules and regulations.

2. (b) Upon review of the completed investigation file, the Executive Director or a board subcommittee, of which, at least one member is a public member of the board, shall determine the amount of penalty imposed based on a standardized penalty schedule and based on the following criteria:

   1. (1) The seriousness of the violation, including but not limited to, the nature, circumstances, extent and the gravity of the prohibited acts and the hazard of potential hazard created to the health, safety, or welfare of the public;
   2. (2) the economic damage to property or the environment caused by the violation;
   3. (3) the history of previous violations:
   4. (4) the amount necessary to deter future violations;
   5. (5) efforts made to correct the violation; or
   6. (6) any other matter the justice may require.
3. (c) The amount of the administrative penalty may not exceed $5000 for each violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

4. (d) Administrative penalties may be imposed for the following violation categories as set forth in Rule 107.101 of this title (relating to Guidelines for the Conduct of Investigations) and the amount of penalty imposed shall be in accordance with this schedule as set forth:

   1. (1) Quality of Care violations may include, but are not limited to:

      1. (A) Failure to treat a patient according to the standard of care in work performed in the practice of dentistry or dental hygiene;
      2. (B) Failure to safeguard patient against avoidable infections;
      3. (C) Misleading dental patient as to the gravity, or lack thereof, of such patient's dental needs;
      4. (D) Failure to advise patient in advance of beginning treatment;
      5. (E) Abandonment of patient;
      6. (F) Negligence in treatment, which results in severe or very serious patient injury;
      7. (G) Negligence in treatment, which results in patient death. The administrative penalty to be determined by the Board;
      8. (H) Failure to report patient death or injury requiring hospitalization; or
      9. (I) Failure to make, maintain and keep adequate dental records.

      10. (J) The amount of penalty that may be imposed on Quality of Care violations may include, but shall not be limited to:

          1. (i) first offense may be up to, but not greater than $3000;
          2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
          3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

   2. (2) Sanitation violations may include, but are not limited to:

      1. (A) Failure to maintain the dental office in a sanitary condition; or
      2. (B) Failure to maintain the dental laboratory in a sanitary condition.

      3. (C) The amount of penalty that may be imposed on Sanitation violations may include, but shall not be limited to:

         1. (i) first offense may be up to, but not greater than $3000;
         2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
         3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

   3. (3) Professional Conduct violations may include, but are not limited to:

      1. (A) Failure to conduct practice in a manner consistent with that of a reasonable and prudent dentist under the same or similar circumstances;
      2. (B) Failure to maintain a centralized inventory of drugs;
      3. (C) Dispensing, administering or distributing drugs for other than dental purposes;
      4. (D) Failure to record the dispensing, administering, or prescribing of narcotic drugs, dangerous drugs, or controlled substances to or for a dental patient in the patient's dental records;
      5. (E) Fraudulently obtaining permits or certifications as may be required by the Board;
      6. (F) Obtaining a fee by fraud or misrepresentation;
      7. (G) Impairment due to addiction or excessive habitual use of alcohol or other drugs;
      8. (H) Impairment due to continuing addiction or excessive habitual use of alcohol or other drugs while under Board order;
      9. (I) Physically or mentally incapable of practicing in a safe manner;
      10. (J) Delegation of surgical cutting procedure on hard or soft tissue to a non-dentist;
      11. (K) Allowing a dental assistant to perform acts or procedures that are not reversible;
      12. (L) Allowing an un-registered person to perform radiologic procedures;
      13. (M) Delegation of duties to a dental hygienist who is not licensed to perform the function; and
      14. (N) Failure to make dental records available to the Board in a timely manner upon demand.

      15. (O) The amount of penalty that may be imposed on Professional Conduct violations may include, but shall not be limited to:

          1. (i) first offense may be up to, but not greater than $3000, and/or participation in the Texas Dental Peer Assistance program, if applicable, and/or suspension to revocation;
          2. (ii) second offense may be up to, but not greater than $4000, and/or participation in the Texas Dental Peer Assistance program, and/or suspension to revocation;
          3. (iii) third offense may be up to, but not greater than $5000, and/or participation in the Texas Dental Peer Assistance program, and/or suspension to revocation.

   4. (4) Professional Conduct violations as they relate to the practice of dental hygiene may include, but are not limited to:

      1. (A) Diagnosing a dental disease, prescribing medication, performing a procedure which is irreversible or which involves the intentional cutting of hard or soft tissue;
      2. (B) Practicing dental hygiene outside of the dental office of a supervising dentist, or in an alternative setting, while not under the supervision of a dentist; or
      3. (C) Applying pit and fissure sealants or site specific subgingival medicaments while outside the dental office of the employer and not under the general supervision or direction of a dentist.

      4. (D) The amount of penalty that may be imposed on Professional Conduct violations as they relate to the practice of dental hygiene may include, but shall not be limited to:

         1. (i) first offense may be up to, but not greater than $3000, and/or suspension to revocation;
         2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
         3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

   5. (5) Administration violations may include, but are not limited to:

      1. (A) Failure to follow the administrative requirements of the Dental Practice Act and the Board's rules;
      2. (B) Participation in a scheme to evade the provisions of the Dental Practice Act and the Board's rules;
      3. (C) Circumventing the provisions of the Dental Practice Act and the Board's rules;
      4. (D) Permitting unlicensed persons to practice in the dental office; or
      5. (E) Knowingly provide dental care in a manner which violates federal or state law regulating insurance.

      6. (F) The amount of penalty that may be imposed on Administration violations may include, but shall not be limited to:

         1. (i) first offense may be up to, but not greater than $3000;
         2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
         3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

   6. (6) Dental Laboratory violations may include, but are not limited to:

      1. (A) Failure to comply with the requirements for registration of a commercial dental laboratory;
      2. (B) Failure to obtain written work order(s) or prescription(s) from a licensed dentist, containing signature and dental license number, date of signature, name of patient, and description of kind and type of act, service or material ordered;
      3. (C) Failure to keep premises and records open to inspection during working hours; or
      4. (D) Failure to comply with the requirements for notification of change of ownership.

      5. (E) The amount of penalty that may be imposed on Dental Laboratory violations may include, but shall not be limited to:

         1. (i) first offense may be up to, but not greater than $3000;
         2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
         3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

   7. (7) Business Promotion violations may include, but are not limited to:

      1. (A) Engaging in false advertising;
      2. (B) Creating unjustified expectation;
      3. (C) Failure to comply with requirements pertaining to professional signs;
      4. (D) Failure to list in advertisement, at least one dentist practicing under trade name;
      5. (E) Failure to make timely notification to telephone company and publishers of directories of any change in status or location; or
      6. (F) Falsely advertising as a specialist in one of the specialties as defined by the American Dental Association.

      7. (G) The amount of penalty that may be imposed on Business Promotion violations may include, but shall not be limited to:

         1. (i) first offense may be up to, but not greater than $3000;
         2. (ii) second offense may be up to, but not greater than $4000, and/or suspension to revocation;
         3. (iii) third offense may be up to, but not greater than $5000, and/or suspension to revocation.

Source Note:The provisions of this §107.202 adopted to be effective February 11, 2003, 28 TexReg 1178; amended to be effective May 10, 2004, 29 TexReg 4474.