(a) Complaint procedures.
  (1) Anyone may complain to the department alleging
that a person has violated the Orthotics and Prosthetics Act, (Act),
Texas Occupations Code, Chapter 605, or this chapter.
  (2) A person wishing to file a complaint against a
person or entity shall notify the board. The initial notification
of a complaint may be in writing, by telephone, or by personal visit
to the executive director's office.
  (3) Upon receipt of a complaint, the executive director
shall send the complainant an acknowledgment letter and, if additional
information is needed, the board's complaint form, for the complainant
to complete and return to the executive director. If the complaint
is made by a visit to the executive director's office, the form may
be given to the complainant then. The executive director may accept
an anonymous complaint if there is sufficient information for an investigation.

  (4) The executive director or his or her designee may
request a response from the licensee, registrant or person against
whom an alleged violation has been filed to gather information required
by the complaints committee of the board. The licensee, registrant
or person against whom an alleged violation has been filed must respond
within 15 working days of the executive director's request.
  (5) If it is determined that the matters alleged in
the complaint are non-jurisdictional, or if the matters alleged in
the complaint would not constitute a violation of the Act or this
chapter, the executive director in consultation with the presiding
officer or his/her designee may dismiss the complaint and give written
notice of dismissal to the licensee, registrant or person against
whom the complaint has been filed, the complainant, and the enforcement
committee.
  (6) The executive director, on behalf of the board,
shall, at least as frequently as quarterly, notify the complainant
and the respondent of the status of the complaint until its final
disposition unless the notice would jeopardize an undercover investigation.

  (7) If it is determined that there are sufficient grounds
to support the complaint, the matters in question shall be investigated.
The executive director or the committee may initiate the investigation.

  (8) If the committee determines that there are insufficient
grounds to support the complaint, the executive director shall dismiss
the complaint and give written notice of the dismissal to the licensee,
registrant or person against whom the complaint has been filed and
the complainant.
  (9) If after due investigation a complaint or allegation
is not resolved by the complaints committee of the board, the committee
may recommend that an application be denied or that a license or registration
be revoked, suspended, or denied or that other appropriate actions
as authorized by law be taken.
(b) Board oversight of processing complaints.
  (1) The executive director will prepare a report reflecting
the actions of the complaints committee. The chair of the complaints
committee will present the report to the board at each board meeting.

  (2) The report will include the number of complaints
reviewed by the complaints committee, the nature of the complaints
made, and action taken on the complaint.
(c) Formal disciplinary actions.
  (1) The board may take the following formal disciplinary
actions for a violation of the Act or this chapter: deny a license,
registration, or facility accreditation; suspend or revoke a license,
registration, or facility accreditation; probate the suspension of
a license, registration, or facility accreditation; issue a reprimand
to a licensee, registrant, or accredited facility, impose a civil
penalty pursuant to the Act, §605.354, impose an administrative
penalty pursuant to the Act, §605.401, or suspend a license on
an emergency basis in accordance with the procedures established in
the Act, §605.3535.
  (2) The board shall take into consideration the following
factors in determining the appropriate action to be imposed in each
case:
    (A) severity of the offense, as follows.
      (i) Severity Level III violations are those that have
or had no significance or a minor significance on health or safety.

      (ii) Severity Level II violations are those that have
or had the potential to cause an adverse impact on the health or safety
of a patient or client, but did not actually have an adverse impact.

      (iii) Severity Level I violations are those that have
or had an adverse impact on the health and safety of a patient or
client.
    (B) the danger to the public;
    (C) the number of repetitions of offenses;
    (D) the length of time since the date of the violation;

    (E) the number and type of disciplinary actions taken
against the licensee, registrant or accredited facility;
    (F) the length of time the licensee has practiced orthotics
or prosthetics;
    (G) the length of time the registrant has practiced
orthotics or prosthetics or worked as a technician;
    (H) the length of time the facility has provided orthotics
or prosthetics;
    (I) the actual damage, physical or otherwise to the
patient, client or other person in the workplace;
    (J) the deterrent effect of the penalty imposed;
    (K) the effect of the penalty upon the livelihood of
the licensee, registrant or accredited facility;
    (L) any efforts for rehabilitation by the licensee
or registrant;
    (M) any corrections or changes in the operation of
or the staffing of the facility;
    (N) any other mitigating or aggravating circumstances.

  (3) Before institution of formal disciplinary action
the board shall give written notice by certified mail, return receipt
requested, and regular mail, of the facts or conduct alleged to warrant
the proposed action, and the licensee, registrant, or accredited facility
shall be given an opportunity to show compliance with the requirements
of the Act and this chapter.
  (4) The written notice will be sent to the last reported
address on record for the licensee, registrant, or accredited facility,
and state that a request for a formal hearing must be received, in
writing, within 14 days of the date of the notice, or the right to
a hearing shall be waived and the action shall be taken by default.
Notice sent to the last reported address is deemed received by the
licensee, registrant, or accredited facility, and a default order
may be entered upon failure to timely request a hearing whether or
not the notice was received.
(d) Informal hearings.
  (1) A licensee, registrant, or accredited facility
may request an informal hearing. The decision to hold an informal
hearing shall be within the discretion of the executive director or
a member of the complaints committee. Informal disposition of any
complaint or contested case involving a licensee, registrant, or applicant
for licensure may be made through an informal hearing held to determine
whether the matters in controversy can be resolved without further
proceedings.
  (2) An informal hearing shall be voluntary and shall
not be a prerequisite to a formal hearing. The executive director
shall establish the time, date and place of the informal hearing,
and provide written notice to the licensee, registrant or applicant.
Notice shall be provided no less than 10 working days prior to the
date of the informal hearing by certified mail, return receipt requested
to the last known address of the licensee or applicant. The licensee,
registrant or applicant may waive the 10-day notice requirement.
  (3) The complainant and other interested parties with
knowledge of relevant facts will be notified if an informal hearing
is to be held, and may attend. The notice shall inform the licensee,
registrant or applicant of the nature of the alleged violation or
the reason for application denial; that the licensee, registrant or
applicant may be represented by legal counsel; that the licensee,
registrant or applicant may offer the testimony of witnesses and present
other evidence as may be appropriate; that a complaints committee
member shall be present; that the board's legal counsel shall be present;
that the licensee's, registrant's or applicant's attendance and participation
is voluntary; that the complainant and any client involved in the
alleged violations may be present; and that the informal hearing shall
be canceled if the licensee, registrant or applicant notifies the
executive director that he or she or his or her legal counsel will
not attend.
  (4) The informal hearing will be conducted in the manner
established by the executive director and consistent with department
procedures. Parties will be afforded a reasonable opportunity to present
their position regarding the matter at issue.
  (5) The licensee, the licensee's attorney, the board's
attorney, the executive director and the complaints committee member
may make relevant statements, present statements of persons not in
attendance, and present such other evidence as may be appropriate.
Committee chair may limit the length of presentations.
  (6) The complaints committee member or the executive
director may exclude from the informal hearing all persons except
witnesses during their testimony, the licensee, registrant or applicant,
the licensee's, registrant's, or applicant's attorney, and board staff.

  (7) Any written statement submitted by the complainant
shall be reviewed at the hearing.
  (8) At the conclusion of the informal hearing, the
complaints committee member or the executive director may make recommendations
for informal disposition of the complaint or contested case. The recommendations
may include any disciplinary action authorized by the Act or this
chapter. The complaints committee member or executive director may
also conclude that the board lacks jurisdiction; conclude that a violation
of the Act or this chapter has not been established; order that the
investigation be closed; or refer the matter for further investigation.

  (9) The licensee, registrant or applicant may either
accept or reject the recommendations at the informal hearing. If the
recommendations are accepted, an agreed order shall be prepared by
the board office or the board's legal counsel and forwarded to the
licensee, registrant or applicant. The order may contain agreed findings
of fact and conclusions of law. The licensee, registrant or applicant
shall execute the order and return the signed order to the board office
within 10 working days of his or her receipt of the order. If the
licensee, registrant or applicant fails to return the signed order
within the stated time period, the inaction shall constitute rejection
of the recommendations.
  (10) If the licensee, registrant or applicant signs
and accepts the proposed recommendations, the agreed order shall be
submitted to the complaints committee and the board for approval.
Placement of the agreed order on the committee and board agendas shall
constitute only a recommendation for approval by the board.
  (11) The identity of the licensee, registrant or applicant
shall not be made available to the board until after the board has
reviewed and accepted the agreed order unless the licensee, registrant
or applicant chooses to attend the board meeting. The licensee, registrant
or applicant shall be notified of the date, time, and place of the
board meeting at which the proposed agreed order will be considered.
Attendance by the licensee, registrant or applicant is voluntary.

  (12) Upon an affirmative majority vote, the board shall
enter an agreed order approving the accepted recommendations. The
board may not change the terms of a proposed order but may only approve
or disapprove an agreed order unless the licensee, registrant or applicant
is present at the board meeting and agrees to other terms proposed
by the board.
  (13) If the board does not approve a proposed agreed
order, the licensee, registrant or applicant shall be so informed.
The matter shall be referred to the executive director for other appropriate
action.
  (14) A proposed agreed order is not effective until
the board has approved the agreed order and the order is signed by
the board chair.
  (15) A licensee's, registrant's or applicant's opportunity
for an informal hearing under this section shall satisfy the requirement
of the Administrative Procedure Act, Texas Government Code, §2001.054(c).

  (16) If a licensee, registrant or applicant who has
requested an informal hearing fails to appear at the hearing and fails
to provide notice of their inability to attend the hearing at least
24 hours in advance of the time the hearing is scheduled such action
may constitute a withdrawal of the request for a formal hearing.
(e) Formal hearings.
  (1) If requested in accordance with subsection (c)
of this section, a formal hearing shall be conducted in accordance
with the Administrative Procedure Act, Government Code, Chapter 2001,
25 Texas Administrative Code, Chapter 1 (relating to Texas Board of
Health), and the hearing procedures of the State Office of Administrative
Hearings (Texas Government Code, Chapter 2003).
  (2) Copies of the formal hearing procedures are indexed
and filed in the executive director's office and are available for
public inspection during regular working hours.


Source Note: The provisions of this §821.20 adopted to be effective February 10, 2011, 36 TexReg 548; amended to be effective October 5, 2014, 39 TexReg 7738