As a licensed orthotist or prosthetist, you must follow all the rules and laws that apply to your profession. A complaint against your license can result in disciplinary proceedings against you, which can lead to negative repercussions for your license and your career. Therefore, if you find yourself in this situation, you should take steps to protect your license by enlisting the help of an experienced orthotist and prosthetist license defense lawyer.
The Texas Department of Licensing & Regulation (TDLR) is the state agency that licenses orthotists and prosthetists. As a result, TDLR also takes complaints about these professionals, investigates those complaints, and pursues disciplinary action where warranted.
Grounds for Disciplinary Action Against Orthotists and Prosthetists
16 Tex. Admin. Code §114.90 provides that any violation of a rule or law that applies to orthotists or prosthetists can result in the imposition of administrative penalties, administrative sanctions, or both. Furthermore, TDLR may revoke, suspend, or probate the license, registration, or facility accreditation when a license is obtained by fraud, misrepresentation, or concealment of a material fact. This situation also can result in the assessment of a reprimand or administrative penalty, and this code section defines various specific examples of this type of fraud. Other grounds for disciplinary action may include the following:
- Fraud or deceit concerning services provided;
- Unprofessional or unethical conduct;
- Gross negligence or malpractice;
- Interference with an investigation; and
- Making frivolous complaints.
Consumer Complaints
TDLR’s Enforcement Division takes complaints from consumers and other members of the public about members of all occupations that it regulates, including orthotists and prosthetists. An intake specialist initially reviews all complaints to determine if TDLR has legal authority over their subject and if there is reason to believe that violations have occurred. If the intake specialist answers both questions in the affirmative, TDLR will open the case for investigation.
TDLR will then send opening letters to the complainant and the licensee. The only exception is for certain investigations in which TDLR may not immediately notify the licensee. As part of the investigation, the investigator typically will interview the complainant, the licensee, and relevant witnesses. The investigator will also gather any records and documents relevant to the complaint and may conduct an on-site investigation. Following completion of the investigation, the investigator will submit a report to a TDLR prosecuting attorney.
The prosecuting attorney determines the resolution of a complaint. However, the attorney may close the case if they determine that further action is unwarranted due to a lack of evidence or another reason. In marginal cases, the attorney also may issue a warning letter to the licensee regarding compliance and then close the case.
Formal Disciplinary Proceedings
If the prosecuting attorney chooses to move forward with enforcement of a violation, they will issue a Notice of Alleged Violation (NOAV) seeking administrative penalties and/or sanctions against the individual who is the subject of the complaint. A NOAV may or may not contain a settlement offer. If the parties can reach an agreement, the TDLR Executive Director will issue an Agreed Order that requires the licensee to do certain things, such as pay a specific administrative penalty. TDLR then monitors the conditions of the Agreed Order until the licensee completes those conditions.
If the licensee does not sign an Agreed Order and does not request a hearing within 20 days of receiving the NOAV, the licensee is in default. As a result, the TDLR can enter a Default Order against the licensee and impose whatever sanctions it sees fit without further notice or hearing.
On the other hand, if the licensee declines the Agreed Order and timely requests a hearing, the case moves to the State Office of Administrative Hearings (SOAH) for adjudication. A SOAH administrative law judge (ALJ) hears the case and submits a Proposal for Decision (PFD) to all parties, which includes the ALJ’s findings of fact and conclusions of law. The Commission of Licensing and Regulation considers the PFD, hears arguments from both parties concerning the PFD, and issues a Final Order in the case.
TDLR Enforcement Plan and Sanctions
TDLR maintains a general enforcement plan with separate segments for each profession or occupation it licenses and regulates. Each specific segment contains a description of individual violations and the range of applicable sanctions or penalties for those violations. Potential sanctions may include:
- License suspension;
- License revocation;
- Probated license suspension; or
- Written reprimand.
Under this scheme, violations by orthotists and prosthetists are divided into four classes of increasing severity, with accompanying sanctions of increasing severity. These classes are as follows:
- Class A – Fines between $50 and $1,000
- Class B – Fines between $500 and $3,000 and/or up to 6 months probated suspension
- Class C – Fines between $1,000 and $5,000 and/or up to 1-year probated license suspension up to license revocation
- Class D – Fines of $5,000 and/or license revocation
In determining the appropriate sanction within the potential range of sanctions for a particular violation, TDLR will consider the following factors:
- The severity or seriousness of the violation.
- Whether the violation was willful or intentional.
- Whether the Respondent acted in good faith to avoid or mitigate the violation or correct it after it became apparent.
- Whether the Respondent has engaged in similar violations in the past.
- The level of penalty or sanction necessary to deter future violations.
- Any other matter that justice may require.
However, the sanctions in each segment of the enforcement plan are not binding on the TDLR and its Executive Director when making decisions in contested cases. However, TDLR prosecuting attorneys are expected to seek penalties within the published ranges unless extraordinary circumstances warrant a departure from those ranges and the TDLR Director of Enforcement approves it.
Find Out More About How to Best Handle Your Disciplinary Proceedings
We want to help put you in the best position to protect your orthotist or prosthetist license. As a result, you need immediate legal representation to defend your license from these potentially severe consequences. At Bertolino LLP, we offer experienced orthotist and prosthetist license defense services for those facing disciplinary action. Contact us today by calling (512) 515-9518 or looking us up online. We can analyze the circumstances that led to the complaint against you and determine the right legal strategy for you.
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