RULE §141.17 Complaints and Violations


Published: 2015

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(a) Disciplinary action; notices.
  (1) The committee may refuse to issue or renew a license;
may revoke or suspend a license or permit; may probate disciplinary
action; or may issue a reprimand to a person who has:
    (A) violated any provision of Texas Occupations Code,
Chapter 402, (Act);
    (B) violated any rule adopted by the committee;
    (C) engaged in false, misleading or deceptive practices
in competitive bidding or advertising; or
    (D) been convicted of a misdemeanor that involved moral
turpitude or a felony.
  (2) Prior to initiation of formal proceeding to refuse
to issue or renew a license, revoke or suspend a license or permit,
probate disciplinary action, assess an administrative penalty, or
issue a reprimand to a permit holder or licensee, the committee or
its designee shall give written notice to the licensee, permit holder,
or applicant by certified mail, return receipt requested, of the facts
or conduct alleged to warrant the action, including the complainant's
name if appropriate; and the licensee, permit holder, or applicant
shall be given the opportunity, as described in the notice, to show
compliance with all requirements of the Act and this chapter, as required
by Texas Government Code, §2001.054(c)(2).
  (3) If disciplinary action against a licensee or permit
holder or denial of a license or permit application or renewal application
is proposed, the committee or its designee shall give written notice
by certified mail, return receipt requested, of the basis for the
proposal and that the licensee, permit holder, or applicant must request,
in writing, a formal hearing within ten days of receipt of the notice,
or the right to a hearing shall be waived and the proposed action
shall be taken.
  (4) Receipt of a notice described under paragraph (1),
(2), or (3) of this subsection is presumed to occur on the tenth day
after the notice is mailed to the last address known to the committee
unless another date is reflected on a United States Postal Service
return receipt.
(b) Reporting alleged violations.
  (1) Any licensee, permit holder, person, or committee
member wishing to report an alleged violation of Texas Occupations
Code, Chapter 402, (Act) or the rules shall notify the executive director.
The initial notification may be in writing, by telephone, or by personal
visit to the committee office.
  (2) Upon receipt of a complaint, the executive director
shall send an acknowledgment letter to the complainant with an official
form which the complainant shall be asked to complete and return the
form to the committee. The executive director may accept an anonymous
complaint if there is sufficient information for investigation. The
Executive Director may accept a complaint that is not on the official
form.
  (3) A complaints subcommittee shall be appointed to
work with the executive director to:
    (A) review each complaint and determine whether the
complaint fits within the category of a complaint affecting the health
and safety of clients or other persons;
    (B) ensure that complaints are not dismissed without
appropriate consideration;
    (C) ensure that a person who files a complaint has
an opportunity to explain the allegations made in the complaint; and
    (D) resolve the issues of the complaint which arise
under the Act or this chapter.
  (4) The executive director shall request a specific
response from the licensee or permit holder against whom the alleged
violation has been filed and gather information required by the complaints
subcommittee.
  (5) If the complaints subcommittee determines that
there are insufficient grounds to support the complaint, the subcommittee
shall dismiss the complaint and give written notice of the dismissal
to both the licensee or permit holder against whom the complaint has
been filed and the complainant.
  (6) If it is determined that there are facts which
may establish a violation of the Act or this chapter, the matters
in question shall be investigated.
  (7) The committee, at least quarterly and until final
disposition of the complaint, shall notify the parties to the complaint
of the status of the complaint unless the notice would jeopardize
an undercover investigation.
  (8) The committee shall address all complaints in a
timely manner.
  (9) The executive director shall notify the complaints
subcommittee of a complaint that has not been resolved in a timely
manner.
(c) Licensing of persons with criminal backgrounds.
  (1) The purpose of this subsection is designed to set
out the requirements and criteria for the eligibility of persons with
criminal backgrounds to obtain and retain licenses or permits.
  (2) The committee may consider the felony conviction
of a licensee, permit holder or applicant as grounds for the disciplinary
action against the licensee, permit holder, or applicant and may review
the conviction.
  (3) The committee may suspend or revoke an existing
license or permit, disqualify a person from receiving a license or
permit, or deny to a person the opportunity to be examined for a license
or permit because of a person's conviction of a felony or misdemeanor
involving moral turpitude, if the crime directly relates to the duties
and responsibilities of a licensee. In considering whether a criminal
conviction directly relates to the profession of fitting and dispensing
of hearing instruments, the committee shall consider:
    (A) the nature and seriousness of the crime;
    (B) the relationship of the crime to the purpose for
requiring a license or permit to practice the fitting and dispensing
of hearing instruments;
    (C) the extent to which a license or permit might offer
an opportunity to engage in further criminal activity of the same
type as that in which the person previously had been involved; and
    (D) the relationship of the crime to the ability, capacity,
or fitness required to perform the duties and discharge the responsibilities
of a licensee or permit holder.
  (4) In determining the present fitness of a person
who has been convicted of a crime, the following shall be considered:
    (A) the extent and nature of the person's past criminal
activity;
    (B) the age of the person at the time of the commission
of the crime;
    (C) the amount of time that has elapsed since the person's
last criminal activity;
    (D) the conduct and work activity of the person prior
to and following the criminal activity;
    (E) evidence of the person's rehabilitation or rehabilitative
effort while incarcerated or following release;
    (F) other evidence of the person's present fitness,
including letters of recommendation from prosecutors, law enforcement,
correctional officers, the sheriff or chief of police in the community
where the person resides, or any other persons in contact with the
convicted person; and
    (G) recommendations of the prosecution, law enforcement,
and correctional authorities as required under Texas Occupation Code,
Chapter 53 shall be secured and provided to the committee by the applicant
to the extent possible; the licensee, permit holder or applicant shall
also furnish proof in such form as may be required by the committee
that he or she has maintained a record of steady employment and has
supported his or her dependents and has otherwise maintained record
of good conduct and has paid all outstanding court costs, supervision
fees, fines, and restitution as may have been ordered in all criminal
cases in which he or she has been convicted.
  (5) If a licensee or permit holder is convicted of
a felony or misdemeanor that includes dishonesty as an essential element
or of a crime directly related to the practice of fitting and dispensing
hearing instruments;
  (6) The executive director shall give written notice
to a person with a criminal background when the committee intends
to take disciplinary action after a hearing in accordance with the
hearing procedures in §141.18 of this title (relating to Formal
Hearings).
(d) Suspension, temporary suspension, probation, denial
or revocation of a license or permit, or reprimand of a licensee or
permit holder.
  (1) If the committee suspends a license or permit,
the suspension shall remain in effect for the period of time stated
in the order or until the committee determines that the reason for
the suspension no longer exists.
  (2) If a suspension overlaps a license renewal date,
the suspended fitter and dispenser of hearing instruments shall comply
with the renewal procedures in this chapter; however, the suspension
shall remain in effect pursuant to paragraph (1) of this subsection.
  (3) Upon revocation of suspension of a license or permit,
a licensee or permit holder shall return his or her license certificate
or permit to the committee.
(e) Default orders.
  (1) If the right to a hearing is waived under subsection
(a) of this section, the committee shall consider an order taking
disciplinary action as described in written notice to the licensee,
permit holder, or applicant.
  (2) The licensee, permit holder, or applicant and the
complainant shall be notified of the date, time, and place of the
committee meeting at which the default order will be considered.
  (3) Upon an affirmative majority vote, the committee
shall enter an order imposing appropriate disciplinary action.
(f) Monitoring of licensees.
  (1) The department shall maintain a complaint tracking
system.
  (2) The committee may require each licensee, permit
holder, or applicant that has had disciplinary action taken against
his or her license or permit to submit regularly scheduled reports.
The report, if required, shall be scheduled at intervals appropriate
to each individual situation.
  (3) The executive director shall review the reports
and notify the complaints subcommittee if the requirements of the
disciplinary action are not met.
  (4) The complaint subcommittee may consider more severe
disciplinary proceedings if noncompliance occurs.
(g) When a licensee or permit holder has offered the
surrender of his or her license or permit after a complaint has been
filed, the committee shall consider whether to accept the surrender
of the license or permit. When the committee has accepted such a surrender,
the surrender is deemed to be the result of a formal disciplinary
action and a committee order accepting the surrender may be prepared.
(h) Cease and Desist Order.
  (1) If it is determined by the committee or the committee's
designee that a person who is not licensed under this chapter is violating
this chapter or a rule adopted under this chapter, or another state
statute or rule relating to the practice of fitting and dispensing
of hearing instruments, the committee, after notice and opportunity
for a hearing, may issue a cease and desist order prohibiting the
person from engaging in the activity.
  (2) A violation of an order under this section constitutes
grounds for imposing an administrative penalty in accordance with
the Act.
(i) Committee-Ordered Refund. The committee may order
a licensee or permit holder to pay a refund to a consumer who returns
a hearing instrument(s) during the 30-day trial period described in
the Act and in this chapter.


Source Note: The provisions of this §141.17 adopted to be effective March 19, 1996, 21 TexReg 1877; amended to be effective September 9, 2001, 26 TexReg 6671; amended to be effective March 23, 2003, 28 TexReg 2320; amended to be effective August 1, 2006, 31 TexReg 5964; amended to be effective September 28, 2010, 35 TexReg 8751; amended to be effective December 4, 2012, 37 TexReg 9495; amended to be effective January 22, 2015, 40 TexReg 327

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