(a) Purpose and Construction. The Board has established the following administrative penalty schedule based upon consideration of the required factors outlined in Section 264.002(b) of the Texas Occupations Code. The Board and Board employees shall utilize this schedule when recommending an administrative penalty amount under Subchapter A of Texas Occupations Code Chapter 264 and §107.201 of this title (relating to Procedures for Assessment of Administrative Penalties in Informal Complaint Resolution). Nothing in this rule section shall be construed to prohibit the Board from imposing a different disciplinary sanction or a Remedial Plan to resolve a complaint. An offer of administrative penalty during the settlement process shall not be binding on the Board in any subsequent contested case hearing or mediation to resolve a complaint.
(b) Definitions. The definitions contained in §107.201(b) of this title shall apply to this rule section.
(c) Penalty Schedule. The amount of an administrative penalty shall not exceed five thousand dollars for each violation, in accordance with Texas Occupations Code §264.002(a). The Board shall identify each violation and element of the penalty amount showing the constituent elements of the total penalty assessed. Pursuant to Texas Occupations Code §264.002(a), each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The type and base amount of each penalty shall be as follows:
(1) Violation of a Board Administrative Rule. A violation involving purely administrative requirements that does not involve the care of patients. Violations under this classification include, but are not limited to:
(2) Basic Recordkeeping and Patient Communication. A violation involving maintenance of patient records, providing patient records upon request, and required communication with a patient. Violations under this classification include, but are not limited to:
(3) Preparedness, Patient Safety, and Sanitation. A violation involving failure to adequately clean and prepare the dental office or location where patients will be treated. Violations under this classification include, but are not limited to:
(4) Standard of Care and Fair Dealing. A violation involving direct clinical treatment or lack of treatment for the patient. Violations under this classification include, but are not limited to:
(d) Additional Factors in Penalty Calculation. The Board shall apply the base amount of each penalty for each day of the violation as identified through the Board's investigation of a complaint. Additionally, the Board shall apply the considerations required by Texas Occupations Code §264.002(b)(1) - (5), and the following additional factors to calculate a final administrative penalty.
(1) Previous Disciplinary Action. If a licensee has received prior disciplinary action for the same conduct representing grounds for the administrative penalty, the Board shall apply five hundred dollars for each previous disciplinary action related to the same conduct, up to the maximum penalty amount.
(2) Exceptional Disregard for Patient Safety. If the Board determines that the conduct representing grounds for the administrative penalty shows exceptional disregard for patient safety by the licensee, the Board shall apply one thousand dollars to each violation which shows such disregard, up to the maximum penalty amount.
(3) Offsetting Restitution to Patient. The Board may reduce the administrative penalty amount assessed upon a showing that the licensee has paid, or by agreed settlement will pay, an amount of restitution to the patient. The Board shall not require payment of other damages or make an estimation of harm in calculation of restitution.
Source Note: The provisions of this §107.202 adopted to be effective July 11, 2016, 41 TexReg 5052; amended to be effective January 3, 2019, 43 TexReg 8593