The Texas Optometry Board (the Board) has jurisdiction over licensed optometrists in Texas. The Board monitors these licensees to ensure compliance with the laws and rules regulating their profession. As such, the Board receives, investigates, and prosecutes licensees when complaints arise alleging that they have violated the rules or laws they are subject to.
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 an optometry license defense attorney for help.
When the Texas Optometry Board Receives a Complaint
Under Tex. Admin. Code §277.1, anyone can file a disciplinary complaint against Texas optometrists with the Board, which it must process as part of its regulatory duties. The Investigation-Enforcement Committee of the Board makes an initial determination about whether it has jurisdiction over the complaint, which is a two-part inquiry:
- Whether the complaint concerns a professional licensed by the Board; and
- Whether the allegations in the complaint are a potential violation of the Texas Optometry Act or Board Rules.
If the Board finds that the complaint is non-jurisdictional, it will dismiss the complaint and/or refer it to the appropriate agency. On the other hand, if it finds that the complaint is jurisdictional, the Board will next determine whether the complaint requires the expertise of a licensee board member.
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Furthermore, based on the circumstances, the Board will classify the complaint as high or normal-priority. The Board considers high-priority complaints for emergency temporary license suspension. These complaints typically involve violations of the professional standard of care, professional misconduct, qualifications of applicants or licensees, unauthorized practice, or other acts or failure to act that potentially threaten public health. On the other hand, normal-priority complaints involve less emergent issues, including advertising violations, violations of the Texas Optometry Act or Board Rules that result in economic harm, and violations of the Act that do not potentially threaten public health.
Board Investigation of Complaints
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Once the Board finishes its preliminary inquiry and opens its investigation into the complaint, it notifies the optometrist and requests a respondent. The Board assesses the need for further investigation and determines whether to proceed with disciplinary action or dismiss the complaint.
Board Initiation of Disciplinary Proceedings
If the Board finds evidence of a violation by the optometrist, it has various options to proceed, including initiating formal disciplinary proceedings.
Informal Settlement Conferences
Under Tex. Occ. Code §351.507, the Board can offer the optometrist the opportunity to appear at an informal settlement conference to resolve the pending disciplinary complaint. Appearance at an informal settlement conference is voluntary. At an informal settlement conference, the optometrist and the complainant appear and present evidence before a panel consisting of at least three Board members, including one Board member who is a member of the public. During an informal settlement conference, the parties may reach a remedial plan or order that can contain various provisions or sanctions, including administrative penalties, a refund of fees, completion of continuing education courses, supervised practice, a probation period, or more. If the parties cannot reach an agreement during the informal settlement conference, then the Board panel may refer the case for a contested administrative hearing.
Contested Administrative Hearings
Like most licensing agencies in Texas, the Board refers its contested hearings to the State Office of Administrative Hearings (SOAH). The SOAH will assign an administrative law judge (ALJ) to oversee and hear evidence in the case. The hearing proceeds much like a court trial in many respects, except that it is subject to specific SOAH procedural rules. After the presentation of evidence, the ALJ will issue findings of fact and conclusions of law contained within a Proposal for Decision (PFD) to the Board. Ultimately, the Board will determine the disposition of the disciplinary case.
Potential Sanctions in a Disciplinary Case Before the Board
Potential sanctions in a disciplinary case before the Board can range widely from a reprimand to a license revocation. For instance, possible sanctions may include:
- Issuing a letter of noncompliance to the optometrist;
- Issuing a formal reprimand to the optometrist;
- Issuing a cease and desist order to the optometrist;
- Entering into a remedial plan with the optometrist;
- Offering the optometrist an agreed order with specific terms and conditions;
- Assessing administrative penalties;
- Suspending the optometrist or placing the optometrist on probation; or
- Revoking the optometrist’s license.
In practicing optometry without a license, the Board can also refer the case to the Attorney General or criminal prosecutor to consider other charges.
Administrative penalties or monetary fines are a common sanction in disciplinary proceedings, either instead of or in addition to other sanctions. The Board must consider the following factors in determining the appropriate amount of an administrative sanction:
- The seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
- The economic harm to property or the environment caused by the violation;
- The history of previous violations;
- The amount necessary to deter a future violation;
- Efforts to correct the violation; and
- Any other matter that justice may require.
The Board can assess a separate administrative penalty for a separate violation each day that the violation continues. As a result, penalties can increase quickly. Nonetheless, Tex. Occ. Code §351.552 institutes a cap of $2,500 per violation.
We Can Advocate on Your Behalf in Your Disciplinary Proceedings
The optometrist license defense lawyers of Bertolino LLP can help guide you through all stages of the disciplinary complaint process. No matter what allegations you face, we are here to represent your interests and work to minimize the impact of the complaint on your license and career. We can help resolve the case against you and maintain your optometrist license. Call us today at (512) 515-9518 to reach the offices of Bertolino LLP or contact us online.
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