The Texas State Board of Dental Examiners (TSBDE) has jurisdiction to license and regulate licensed dentists and dental hygienists in Texas. Therefore, the TSBDE receives, investigates, and brings formal disciplinary action against licensees when complaints arise alleging that they have violated the rules or laws that govern their profession.
Getting legal representation in disciplinary proceedings before the Board can be key to a positive outcome in your case. As a result, any licensed optometrists facing disciplinary investigations, complaints, or formal proceedings before the Board should consult a dental hygienist license defense attorney for help.
Initial Handling of Complaints by TSBDE
When the TSBDE receives a complaint about a dental hygienist, the agency first conducts a preliminary inquiry to determine if they have proper jurisdiction over the complaint. First, the agency ensures that the subject of the complaint is a hygienist licensed by the agency. Next, the agency determines whether the complaint alleges that the hygienist has violated a law or rule that the agency enforces. If the complaint does not fall within the agency’s jurisdiction, the TSBDE will dismiss the complaint as non-jurisdictional. Similarly, if the complaint falls within TSBDE’s jurisdiction, but the agency finds insufficient evidence to proceed to a full investigation, it will dismiss the complaint.
If the complaint is jurisdictional and contains sufficient evidence of a violation by the hygienist after a review by TSBDE staff, it proceeds to a full investigation. An investigator will interview all parties involved, gather documentary evidence, and obtain any other information that relates to the alleged violation. If the allegations involve a violation of the standard of care, the Dental Review Panel, which consists of six dentists, two dental hygienists, and one registered dental assistant, will review the complaint.
Upon completion of the investigation, the investigator presents any violations that they discover to the legal division of the TSBDE for review. At that point, the legal division may dismiss complaints for a lack of evidence, impose an administrative penalty for minor violations unrelated to patient care, or pursue formal non-disciplinary or disciplinary action.
Potential Outcomes of TSBDE Complaints
Non-Disciplinary Action
Under 22 Tex. Admin. Code §107.204, the TSBDE may issue a non-disciplinary remedial plan to resolve a complaint against a dental hygienist. Since it is a non-disciplinary remedy, it may not contain a revocation, suspension, limitation, or restriction on a dental hygienist license or an assessment of an administrative penalty.
Furthermore, remedial plans are not an option if the violation involves:
- A patient death;
- The commission of a felony;
- Inappropriate sexual behavior or contact with a patient; or
- Financial or personal involvement with a patient in an inappropriate manner.
A remedial plan also is unavailable as a remedy if the dental hygienist has previously had a remedial plan through TSBDE within the last five years. TSBDE may charge the hygienist a fee to administer a remedial plan.
Remedial plans are public information. However, for remedial plans issued after September 1, 2021, a hygienist may request that the TSBDE remove all information related to the remedial plan and the complaint that led to the plan five years from the date that the plan was issued. However, the TSBDE may not remove the public information related to the remedial plan and complaint if the complaint was related to the delivery of health care or more than one remedial plan was issued against a hygienist to resolve complaints alleging the same violation.
Disciplinary Action
The TSBDE also may take disciplinary action against a dental hygienist to resolve a complaint. Under 22 Tex. Admin. Code §107.206, the TSBDE may issue the following disciplinary actions to resolve a complaint:
- An administrative penalty;
- A warning;
- A reprimand;
- A probated suspension issued for a period of years during which the hygienist may continue to practice;
- An enforced suspension issued for a period of days or years during which the hygienist may not practice; or
- A revocation that requires the issuance of a new license according to TSBDE requirements.
All these sanctions may or may not be accompanied by an administrative fine. These sanctions may result from an agreed order between the hygienist and the TSBDE or from a final order of disciplinary action issued following a contested case hearing at the State Office of Administrative Hearings.
Determining the Sanctions for Violations
The TSBDE generally follows the guidelines under 22 Tex. Admin. Code § 107.202 in assessing administrative penalties for different types of violations. However, the TSBDE may deviate from these guidelines if it deems it justified.
22 Tex. Admin. Code § 107.203 also outlines various aggravating and mitigating factors that the TSBDE can consider in determining the appropriate sanctions for dental hygienists in disciplinary cases.
Aggravating Factors
Aggravating factors are those that may cause the TSBDE to impose a more severe or restrictive disciplinary sanction on a dental hygienist. These factors include the following:
- harm to one or more patients;
- the severity of patient harm;
- one or more violations that involve more than one patient;
- economic harm to any individual or entity and the severity of such harm;
- increased potential for harm to the public;
- attempted concealment of the act constituting the violation;
- intentional, premeditated, knowing, or grossly negligent act constituting a violation;
- prior similar violations;
- previous disciplinary action by the Board, any government agency, peer review organization, or health care entity;
- violation of a Board Order; or
- other relevant circumstances increasing the seriousness of the misconduct.
Mitigating Factors
On the other hand, mitigating factors may cause the TSBDE to impose a less severe or restrictive sanction on a dental hygienist. These factors include the following:
- self-reported and voluntary admission of violation(s);
- implementation of remedial measures to correct or mitigate harm from the violation(s);
- acknowledgment of wrongdoing and willingness to cooperate with the Board, as evidenced by the acceptance of an Agreed Order;
- rehabilitative potential;
- prior community service and present value to the community;
- other relevant circumstances reducing the seriousness of the misconduct; or
- other relevant circumstances lessening responsibility for the misconduct.
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We Can Advocate on Your Behalf in Your Disciplinary Proceedings
The dental hygienist license defense lawyers of Bertolino LLP can help guide you through the disciplinary complaint process. No matter what allegations you face, we are here to represent your interests and work to minimize the negative effects of a complaint on your license and career. We can help positively resolve the case against you and maintain your dental hygienist license. Call us today at (512) 515-9518 to reach the offices of Bertolino LLP or contact us online.
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