(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:
    (A) failure to timely complete continuing education requirements;
    (B) practice with expired license, permit, or registration;
    (C) failure to comply with Board advertising rules and restrictions;
    (D) permitting a staff member to practice with an expired license, permit, or registration; and
    (E) failure to maintain a current and accurate contact address with the Board. The base amount of this penalty shall be one hundred dollars.
  (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:
    (A) failure to provide records to a patient within 30 days of request;
    (B) failure to provide adequate intent to discontinue undertaken treatment notice to the patient as required by §108.5 of this title (relating to Patient Abandonment) (each missing element represents a separate violation);
    (C) failure to report a patient hospitalization as required by §108.6 of this title (relating to Report of Patient Death or Injury Requiring Hospitalization);
    (D) failure to review and update patient medical history annually; and
    (E) failure to record patient vital signs as required by Board rule. The base amount of this penalty shall be two hundred fifty dollars.
  (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:
    (A) failure to prepare adequate emergency protocols and ensure staff training for emergencies;
    (B) failure to comply with sanitation requirements and testing; and
    (C) failure to maintain adequate supplies of emergency response medications and supplies as required by the licensee's practice type and sedation/anesthesia permit level. The base amount of this penalty shall be five hundred dollars.
  (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:
    (A) falling below the minimum standard of care when performing endodontic, orthodontic, restorative, or other dental treatment;
    (B) provision of sedation/anesthesia below the minimum standard of care, where the violations did not pose a danger to the health and safety of patients;
    (C) failing to obtain adequate written informed consent from the patient for all procedures performed;
    (D) violation of the duty of fair dealing by overcharging, overbilling, or overtreating the patient; and
    (E) misleading a patient as to the gravity of their dental needs. The base amount of this penalty shall be one thousand dollars.
(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