The processing of complaints filed with the State Board of Dental Examiners (“Board”) is governed by Chapter 255, Title 3, Occupations Code and Rules 107.00 through 107.103 of the Board’s Rules. After deciding that the complaint involves potential violations, Board Staff has the authority to schedule an informal settlement conference, draw up a proposed board order, or file a formal complaint with the State Office of Administrative Hearings. As the informal settlement conference track gives the licensees an opportunity to present their mitigating or exculpatory evidence to a Board member who has the authority to resolve an investigation, such a setting is many times favorable to flesh out the facts and give the licensees a venue to clarify the issues.
Unfortunately, the more recent trend has pointed to Board Staff presenting proposed board orders to licensees in lieu of scheduling informal settlement conferences to resolve cases. These board orders are prepared and reviewed by Board Staff, including the dental director who is employed by the Board. In the proposed order Board Staff will make findings of fact and conclusion of law, and list sanctions without any input from the licensee. The proposed orders are sent to the licensees accompanied by a form letter stating the failure to sign the order would result in a formal complaint and a contested case hearing at the State Office of Administrative Hearings. Many times, licensees, without an understanding of the disciplinary process will be coerced to sign the order as the prospects of a formal hearing are daunting. What the dentist often does not know is they still have the right to request an informal conference and obtain a copy of all non-confidential information in Staff’s investigative file. For these reasons, among others, licensees investigated by the Board should seriously consider hiring an attorney.
The attorneys at the Leichter Law Firm have extensive experience in professional licensing and administrative law and will generally help to secure better outcomes than a practitioner facing the Board alone. In the scenario explained above, we would request an informal settlement conference so that we would be better able to marshal evidence and present your case to Board Staff and a representative Board member. If you have received a proposed board order without having been afforded the opportunity for a face-to-face informal meeting, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.
Following the movement of its prior General Counsel to the Office of the Inspector General, the Texas State Board of Dental Examiners recently hired Julie Hildebrand to serve as the Board's new head attorney. For the past several years Ms. Hildebrand has served as the lead litigation attorney for the Texas State Board of Pharmacy. As such, Ms. Hildebrand was responsible for trying the bulk of the Pharmacy Board's case load at the State Office of Administrative Hearings (SOAH).
Ms. Hildebrand's predecessor, Joy Sparks, started as General Counsel during a transitional time at the Board as it worked to streamline its investigative and disciplinary process and become more aggressive towards dentists suspected of violating the Dental Practice Act. Ms. Sparks was instrumental in this process, applying many of the same basic procedures used by the Texas Board of Nursing, a much larger board were she was previously employed as Assistant General Counsel. This included multiple changes to the Dental Practice Act designed to modernize it and bring it more in line with licensing laws applicable to other Texas health care professionals.
It is yet to be seen what impact Ms. Hildebrand will have on this trend but I would assume the Dental Board will continue the policies and efficiency building initiatives conceived under Ms. Sparks. Ms. Hildebrand's prior employer, the Texas State Board of Pharmacy, is notorious for assuming unreasonable disciplinary stances that typically lead to otherwise unnecessary litigation. That being said, the Leichter Law Firm's experience with Ms. Hildebrand is that although she will enforce the Board's position whatever it may be, she is personally reasonable and willing to consider all aspects of a case. I do not expect the Texas Dental Board to ease off of its more proactive posture towards investigations and disciplinary action against Texas dentists.
In the past two months I have noticed a significant rise in the number of Dentist’s seeking potential legal representation before the Texas State Board of Dental Examiners. This is not surprising as the Dental Board has recently come under fire from both the press and Legislature for what is perceived as a record of lax or ineffectual enforcement. To attempt to remedy this situation the last Legislative Session authorized a sizable increase in the Dental Board’s budget for investigations and disciplinary matters.
The Texas Dental Board has been rapidly placing these new funds to use by hiring a new General Counsel, Joy Sparks, as well as several other new attorneys, paralegals, investigators, and miscellaneous support staff. Combined with the additional personnel, the Dental Board has begun pursuing dentists and other licensees for complaints and criminal episodes it would have likely either ignored or sought minimal discipline for in the past.
In one of my recent cases, the Board of Dental Examiners is seeking to impose a multi-year reprimand on the basis of a comparatively minor misdemeanor for which the dentist was placed on deferred adjudication. Previously, this kind of offense would have probably been ignored by the Board or only resulted in them demanding a less severe sanction; however, in this new climate the dentists may be facing a lengthy fight to avoid the imposition of an unreasonable Order.
The dilemma faced by this dentist and other’s like him is even if they are the subject of a comparatively minor case, should they agree to such discipline they will potentially be required to report it to their provider networks, malpractice insurers, any other credentialing bodies, other state’s where they are licensed, and the Department of Public Safety and DEA in reference to their controlled substances registration. The import is that what may start as a small case at the Dental Board can lead to a whole host of secondary effects which can affect a dentist’s ability to smoothly function as an ongoing concern.
The Dental Board has also initiated the process necessary to promulgate new disciplinary rules which promise to sharpen the teeth of the Board’s enforcement wing. I intend to dedicate a blog article to this topic once these proposed rules assume a more definite shape.
The bottom-line is that Texas dentists should expect to see more activity from the Dental Board in the coming year and should ensure they keep abreast of rule changes and how they may impact their practice. Due to the Texas State Board of Dental Examiners’ more severe stance towards discipline, I strongly encourage any dentist subject to an investigation or disciplinary action to contact an attorney with experience in both administrative law and the representation of licensees before the Dental Board. In almost every case, early involvement by an attorney familiar with the process will lead to a better outcome and minimize any negative effects on the dentist’s practice.
Disciplinary actions before the Texas State Board of Dental Examiners are covered by the Texas Occupations Code and the Dental Board’s own administrative rules. Common grounds for discipline include
- Criminal charges including arrests deferred adjudication probations and convictions including DWI;
- Substance abuse, chemical dependency or the intemperate use of controlled substances;
- Unprofessional conduct;
- Fraudulent billing practices;
- Non-therapeutic or over prescribing;
- Discipline by a peer group or other State Licensing Board;
- Standard of care violations including:
- Failure to obtain appropriate informed consent;
- Inappropriate or non-clinically indicated treatment;
- Failure to provide the patient with an appropriate treatment plan;
- Failure to obtain the patient’s clinical / medical history and obtain and document blood pressure and medications used;
- The provision of care and treatment that falls below the standard of care
The resulting sanctions for violations proved can be severe including an administrative penalty, public reprimand, probation, suspension, or the outright recommended revocation of a practitioner’s license.
A disciplinary proceeding begins with a complaint. Complaints can come from different sources: colleagues- who, under the Dental Practice Act, are required to report certain conduct to the Board- patients, disgruntled family members, peer assistance groups such as Professional Recovery Network, and other states’ licensing authorities. Upon receipt of the complaint, Board Staff will first decide whether they have jurisdiction over the matter, and if they do, initiate an investigation. During the investigation the license holder will be given a copy of the complaint and be asked to return a written preliminary response to the allegations. At this point the Staff will decide whether to publicly dismiss the complaint or pursue a disciplinary proceeding. If the Board determines during the investigation that the continued practice of a license holder constitutes a clear, imminent, or continuing threat to the public, the dentist’s license may be temporarily suspended before a hearing has been held.
After deciding that the complaint merits potential violations Board Staff has the authority to hold an informal settlement conference, draw up a proposed board order, or file a formal complaint with the State Office of Administrative Hearings. The informal settlement conference is an informal hearing before a Board committee where both parties will be permitted to present their case. First, the prosecuting Staff attorney will present the charges against the practitioner and may suggest some of the features of a potential order. Next, the licensee and their attorney, if one has been retained, will respond and offer mitigating or exculpatory evidence as well as present any steps the dentist has taken to avoid future violations or recover from any dependency issues. Then the Staff will question the license holder. Finally, the dentist and the Staff prosecutor will leave while the Board reaches a decision. The parties will then be recalled and presented with the Committees’ decision which may be a dismissal or resolution by an Agreed Order. After the informal settlement conference, the dentist does not have to accept the proposed order although refusal will almost certainly lead the Board to file formal charges and pursue a contested case at the State Office of Administrative Hearings.
A dentist being investigated by the State Dental Board of Examiners should seriously consider hiring an attorney. A lawyer with extensive experience in professional licensing and administrative law will generally help to secure better outcomes than a practitioner facing the Board alone. They will be better able to marshal evidence and present their case to the Staff, all the more important given the fact that the license holder is not in a good position to advocate on their own behalf. Further, during the investigation, the Board is barred from questioning the dentists directly if they have retained counsel. Such an attorney will be able to counsel the dentist against unwise admissions and choices that can have dire consequences on their future ability to practice.