(a) Receipt of Complaint.   (1) All written and signed complaints filed with the Board are subject to investigation. Complaints may also be filed electronically via e-mail and the Board's website with use of the official complaint form. Anonymous written complaints may be investigated and will be logged and filed for information purposes. Complainants who wish to complain by telephone will be advised that their complaints must be submitted in writing, must be signed by complainant, and that Board complaint forms will be mailed to them for their use and submission to the Board. A log will be maintained with names and addresses of complainants who telephone the Board offices and to whom complaint forms are mailed. The Board shall also maintain an information file for each complaint that contains a record of all persons contacted in relation to the complaints, summary of findings at each stage of complaint process, an explanation of legal basis and reason that a complaint was dismissed, and other relevant information. If necessary, agency staff may request a complainant to swear by affidavit to the allegations made before a Notary Public to attest to the truthfulness of the complaint. Failure to submit a sworn/notarized statement or affidavit, or the filing of an untruthful/false complaint can result in the complaint being dismissed.   (2) When a written complaint is received at the Board Offices, the complaint will be date-stamped immediately. The complaint will then be reviewed by the Executive Director or Investigator. A complaint file will be created and the complaint will be assigned to an Investigative Liaison, who is a Board member and a licensed podiatric physician, or a Podiatric Medical Reviewer as determined by agency staff to seek clinical expertise and medical judgment as necessary. Jurisdictional complaints investigated by the Board include, but are not limited to, allegations involving death, substance abuse, fraud, negligence, advertising, fees, records, inappropriate physician behavior, impaired physician and office inspections. Complaints received based on information and facts that have previously been or are currently being investigated may not warrant additional investigation. If a complaint is determined to be non jurisdictional, the complaint may be referred at the complete discretion of the Board to another entity or government agency for investigation.   (3) If an allegation is determined to be critical in nature, it will be assigned a high priority and the requirement for written and signed complaints will be waived temporarily, but will be obtained later in the investigative process. Upon receipt of information posing a threat to public safety and welfare, in response to trends/patterns in violations or in order to meet regulatory mandates, the Board may initiate complaints of its own. In order to track trends/patterns, information may be entered into the Board's complaint database to establish a regulatory index.   (4) Some complaints which are of a low priority or involve miscommunication may have the possibility to be resolved via a peer review process with the state podiatric society or trade association. These scenarios may involve, but are not limited to, situations where there is a lack of information or misunderstanding as to the care delivered, feelings that a patient's time with the podiatrist was brief/hurried/abrupt, an appearance that the podiatrist was uncaring, professional disputes/conflicts (i.e. peer-to-peer), fee disputes, third party payer disputes, common orthotic issues, bedside manner issues, medical record accessibility issues, advertising issues and some surgery complaints where all a patient is seeking is continuity of care and corrective remedies. The Board shall have complete discretion to refer such complaints for peer review to a state podiatric society or trade association for professional resolution in accordance with the provisions of Texas Occupations Code Chapter 202, Subchapter J "Peer Review." A written report of a society's or trade association's professional review in response to a Board referral must contain a summary of the findings, recommendations, conclusions and resolution with submission of the same made to the Board. In the event of a professional resolution amongst the society/trade association, complainant and podiatrist, the society/trade association shall notify the complainant and podiatrist of the same by letter explaining the action taken with a copy of the letter submitted to the Board. (b) Investigation of Allegations.   (1) Upon receipt of the written allegation and/or determination of a high priority issue, the Executive Director or Investigator will assure that the complaint information is entered into the computer and given a file number. A letter of acknowledgment will be promptly mailed to the complainant. Case files will be reviewed from time to time as needed to insure cases comply with scheduling.   (2) Depending on the type of allegations and/or violations at issue, the investigation of the complaint will usually be conducted in accordance with the following guidelines:     (A) After a signed and written complaint is received, the Executive Director or Investigator may interview the complainant either in person or over the telephone so that the complainant has an opportunity to explain or elaborate upon the allegations made in the complaint. If the allegation is a misunderstanding and/or without merit, the Executive Director or Investigator informs the Investigative Liaison, as necessary, a recommendation that the case be closed upon submission of a written report to and with concurrence of the Investigative Liaison informs the complainant that the case be closed.     (B) After the complainant's statement has been obtained, and the Executive Director or Investigator determines that a potential violation exists, the licensee is informed of the nature of the allegations in the complaint. Patient records may be requested to assist in the investigation. The licensee is given an opportunity to respond to the allegations either in an interview with the Executive Director or Investigator or by giving a narrative statement via mail or FAX or electronic means. The licensee may be provided a copy of the complaint unless providing a copy of the complaint would jeopardize the investigation or is prohibited under another provision of law. If a copy of the complaint is provided to the licensee, he/she may disclose the information to another person only to the extent consistent with the authorized purpose for which the release of information was provided. Otherwise, a complaint, report, investigation file, or other investigative information in the possession of or received or gathered by the Board or an employee or agent of the Board that relates to a license holder, a license application, or a criminal investigation or proceeding is privileged, confidential, and not subject to discovery, subpoena, or any other legal method of compelling release.     (C) At any time before a complaint is resolved, further investigation may be necessary in the form of second or third opinions, obtaining supporting documents, interviewing other witnesses, etc., depending on the case at hand. During the course of the investigation, the board will periodically notify the complainant of the status of the complaint until final disposition, unless the notification would jeopardize an undercover investigation.     (D) If the case does not require the medical judgment of the Investigative Liaison, and the Executive Director or Investigator concludes, after all elements have been investigated, that a violation probably exists the Executive Director or Investigator shall compose and mail to the licensee an Agreed Order inviting the licensee to an informal hearing on the Agreed Order to discuss the allegations made against the licensee. If the Executive Director or Investigator concludes that the complaint has no merit, the Executive Director or Investigator will apprise the Investigative Liaison assigned to the case, as necessary, and authorize closing the case. The Executive Director or Investigator will assure the complainant and licensee are notified by letter explaining the action taken on the dismissed complaint. The Board may also inform the subject licensee of any recommendations that may improve the licensee's practice. If the complaint is determined to be untruthful, false, baseless, unfounded, frivolous or malicious, the complaint shall be dismissed and a letter shall be sent to the address of record of the complainant and licensee informing him/her that the complaint was dismissed.     (E) If the case does require the medical judgment of the Investigative Liaison, and the Executive Director or Investigator concludes, after all relevant elements have been investigated, that a violation probably exists, the Executive Director or Investigator shall send copies of pertinent documents, along with a cover letter to the Investigative Liaison, who will assist in determining whether the case should be closed, further investigation is warranted, or the licensee should be invited to respond to the allegations at a conference. If the case is closed, the complainant and the licensee will be notified by letter explaining the action taken on the dismissed complaint.     (F) If an informal hearing on the Agreed Order is recommended, the Executive Director or Investigator shall, by certified mail, mail to the licensee an Agreed Order with a list of allegations. The conference is conducted in accordance with the Texas Government Code Annotated §2001.054 et. seq., and is part of the investigatory process. The licensee is advised that he or she has the right to counsel. The allegations are presented to the licensee and the licensee is given every opportunity to present his or her side of the issue. The licensee shall also have the right to waive the conference, in which case the investigation shall proceed to the next step in the disciplinary process. In attendance at the conference are the Executive Director or Investigator, the Investigative Liaison assigned to the case, the Assistant Attorney General representing the Board, a public member of the board, and the complainant if the complainant desires to attend.     (G) After the licensee responds to the allegations, the Executive Director or Investigator, Investigative Liaison, and the Assistant Attorney General will review the file and the licensee's response and recommend the disposition of the complaint. If it is determined that a violation has not occurred, the case will be dismissed and all parties to the allegations will be notified by letter explaining the action taken on the dismissed complaint. The Executive Director or Investigator will advise the Board at each scheduled board meeting of the number of complaints dismissed since the last board meeting. The information furnished will consist of a status report of the total number of cases opened and closed for the time period in between each board meeting or quarterly performance measure report.     (H) If it is determined that a violation has occurred and a penalty/disciplinary action is warranted, within 14 days of the date of determination a proposed agreed order shall be mailed by certified mail to the licensee. The order must include a brief summary of the alleged violation and a statement that the licensee waives the right to a hearing on the occurrence of the violation and the amount of the penalty/disciplinary action. In determining the penalty/disciplinary action, the board will utilize the complaint penalty schedule to assess the appropriate sanction based on the category of complaint and severity level.     (I) Within 20 days after the date the licensee receives the proposed order, the licensee may, in writing, accept the determination and recommended penalty, disciplinary action of the Executive Director or Investigator, propose a counter-offer, or may request, in writing, a hearing on the occurrence of the violation and the amount of the penalty.     (J) If the licensee accepts the determination and recommended penalty/disciplinary action of the Executive Director or Investigator, the Board by order shall approve the proposed agreed order or shall amend the proposed agreed order as a counter-offer. (c) Docketed Complaint and Hearing.   (1) If the licensee declines the proposed agreed order and requests a hearing or if the licensee fails to respond timely to the proposed agreed order, a docketed complaint will be drafted and assigned a docket number. The complaint is reviewed by the Assistant Attorney General who then returns it to the agency where corrections are made, if indicated. The date the Executive Director or Investigator files the complaint with SOAH is the official date of filing the docketed complaint with the Board. The docketed complaint is then served on the licensee by certified mail or personal service at least ten days prior to a scheduled hearing.   (2) The Executive Director or Investigator shall request a hearing and give notice of the hearing to the licensee. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact, conclusions of law and promptly issue to the Board a proposal for a decision about the occurrence of the violation, the proposed disciplinary action, and the amount of the proposed penalty, if any. Based on findings of fact, conclusions of law, and proposal for a decision, the Board by order may find that a violation has occurred, impose a penalty, impose disciplinary action, or may find that no violation occurred. The complainant shall be promptly advised by letter of the final disposition of the complaint.   (3) The notice of the Board's order given to the licensee under the Texas Government Code Annotated Chapter 2001 et. seq. and its subsequent amendments must include a statement of the right of the licensee to judicial review of the order. (d) Licensee's Record. All actions taken by the Board against a licensee shall be made a permanent part of the licensee's record at the Board office reportable on the Board's website and reportable to the NPDB-HIPDB (National Practitioner Databank - Healthcare Integrity Protection Databank). Cont'd...