By: Roger Berger
The Texas Administrative Code provisions governing disposition of complaints against dentists licensed in Texas was amended effective March 10, 2022. Licensees should be aware of two important changes to those rules.
First, when the Texas Dental Board investigates a dental licensee, it has various methods to dispose of complaints at the conclusion of its investigation or at an Informal Settlement Conference. These include dismissal, and, in increasing order of severity, a Remedial Plan, Administrative Penalty, Warning, Reprimand, Probated Suspension, Enforced Suspension, or Revocation of License.
Until the recent modification of the Code provisions, dentists licensed in Texas who were the subject of Dental Board investigations were allowed only one Remedial Plan in their lifetime. Thus, if a dentist signed off on a Remedial Plan and had a subsequent investigation, the ultimate disposition had to be either dismissal or a disciplinary Order (the Remedial Plan is the only disposition other than dismissal that is non-disciplinary, though it is still a public record).
With the Code modification earlier this year, the Dental Board now is authorized to offer a Remedial Plan to licensees who have previously signed one. 22 Tex. Admin. Code § 107.204(d). Remedial Plans still may not be offered to resolve a complaint concerning a patient death, commission of a felony, boundary allegations (inappropriate sexual behavior or contact or becoming financially or personally involved with patients inappropriately), or for dispositions that involve practice restrictions.
The only restriction on the Board from offering a “second” Remedial Plan is that the licensee cannot have entered into a Remedial Plan within the past five (5) years. Presumably, that will be five years from when the Executive Director of the Texas Dental Board signs off on a Remedial Plan, not when a licensee signs it.
Second, the Code provisions governing Remedial Plans were changed. A licensee now is authorized to request removal of a previously signed Remedial Plan from a licensee’s public record (i.e., what the public can access on the Board’s website) on or after the fifth anniversary of when it was issued. 22 Tex. Admin. Code § 107.204(g).
The Code limits this to Remedial Plans that were issued on or after September 1, 2021 and does not allow for removal from the Board’s public internet website of any Remedial Plan which was related to the delivery of health care. 22 Tex. Admin. Code § 107.204(g)(1). It also does not allow removal from the public website when more than one Remedial Plan has been issued to resolve complaints alleging the same violation. 22 Tex. Admin. Code § 107.204(g)(2).
The procedure is simple: a licensee (or his/her counsel) must submit a written request to the Dental Board’s General Counsel identifying the specific case number the dentist wishes to have removed and providing proof that the licensee complied with and successfully completed all terms of the Remedial Plan. 22 Tex. Admin. Code § 107.204(h).
These provisions appear on their face to be of limited utility because almost all dental board investigations that are not dismissed involve the provision of health care. It will be up to the Board, presumably the General Counsel, to determine whether the prior Remedial Plan fits into that broad definition. Until we see application of the new Code provisions in practice, we can presume that requests will be granted when the Remedial Plan in question was related to recordkeeping violations, administrative rule violations (e.g., failure to timely complete CE or failure to timely file a self-report of a patient hospitalization or death related to dental treatment), or sanitation issues. When, however, the allegations against a licensee relate to the standard of care involving treatment, a request may fail.
This makes it even more important to fight every standard of care allegation at an Informal Settlement Conference. If a licensee and counsel are able to get the panel to drop standard of care allegations, care must also be taken that any ensuing Remedial Plan based on administrative or record-keeping violations or sanitation issues not mention any standard of care allegations in it. And licensees should argue that record-keeping is not part of the standard of care, which applies to dental care, not record-keeping related to that care.