PART 3. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
CHAPTER 80. COMPLAINTS
The Texas Board of Chiropractic Examiners (Board) proposes repealing 22 TAC §80.5 (Expert Review Process). The Board will propose a new §80.5 in a separate rulemaking. This rulemaking action will clarify language relating to the Board's authority to conduct standard of care reviews during complaint investigations.
The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed repeal is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the repeal as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed repeal will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).
Mr. Fortner has determined that for each year of the first five years the proposed repeal will be in effect the public benefit is to clarify language relating to the Board's authority to conduct standard of care reviews during complaint investigations.
The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed repeal of 22 TAC §80.5. For each year of the first five years the proposed repeal is in effect, Mr. Fortner has determined:
(1) The proposed repeal does not create or eliminate a government program.
(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the Board.
(4) The proposed repeal does not require a decrease or increase in fees paid to the Board.
(5) The proposed repeal does not create a new regulation.
(6) The proposal repeals existing Board rules for an administrative process.
(7) The proposed repeal does not decrease the number of individuals subject to the rule's applicability.
(8) The proposed repeal does not positively or adversely affect the state economy.
Comments on the proposed repeal or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 1801 North Congress Avenue, Suite 10.500, Austin, Texas 78701-1319, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed repeal is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.
The repeal is proposed under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic), and 201.210 (which authorizes the Board to adopt rules to develop a review process for complaints requiring additional chiropractic expertise).
No other statutes or rules are affected by this proposed repeal.
§80.5.Expert Review Process.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2023.
TRD-202302262
Christopher Burnett
General Counsel
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-6700
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §80.5 (Peer Review Process). The current §80.5 is being repealed in a separate rulemaking action.
Texas Occupations Code §201.210 requires the Board to set up a system where the Board may draw on outside chiropractic expertise (an "expert" reviewer of patient records) to help in investigations involving standard of care allegations. The Board adopted such a system through §80.5.
However, the use of the term "expert" in both the statute and the Board's current rule has caused confusion for some complainants as to the exact role and authority of the reviewer. Some complainants have thought that the reviewer's job is to assign legal liability for any injury the complainant may have suffered as the result of a licensee's failure to meet the profession's standard of care; in effect, some complainants believe that the reviewer is the same as an expert witness in a trial court who is called upon to render an opinion as to causation (and thus assign legal liability). That is not the case with the Board's reviewers.
Unlike an expert witness, a Board reviewer does not examine any patient; the reviewer only performs a review of records. Also, a Board reviewer is not statutorily authorized to render an opinion as to causation, only whether the standard of care for chiropractic was met; those are different standards. An opinion on causation is within the purview of the courts, not the Board.
The proposed new §80.5 keeps the Board's current system of outside standard of care review, but clarifies to both reviewers hired by the Board and complainants that the reviewer is not authorized to make a legal opinion as to any violation of statutes or rules under the Board's jurisdiction, nor authorized to make a legal opinion as to the liability for any injury possibly sustained by the complainant. To that end, the rule will be retitled as "Peer Review Process" to eliminate the perception that a Board reviewer is the same as an expert witness.
The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the rule as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).
Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is a more accurate description of the role and limitations of individuals selected by the Board to perform standard of care reviews in complaints filed with the Board.
The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed new 22 TAC §80.5. For each year of the first five years the proposed rule is in effect, Mr. Fortner has determined:
(1) The proposed rule does not create or eliminate a government program.
(2) Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Board.
(4) The proposed rule does not require a decrease or increase in fees paid to the Board.
(5) The proposed rule does not create a new regulation.
(6) The proposal does repeal existing Board rules for an administrative process.
(7) The proposed rule does not decrease the number of individuals subject to the rule's applicability.
(8) The proposed rule does not positively or adversely affect the state economy.
Comments on the proposed rule or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 1801 North Congress Avenue, Suite 10.500, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed rule is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.
The rule is proposed under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic), and §201.210 (which requires the Board to develop a review process of complaints filed with the Board that require additional chiropractic expertise).
No other statutes or rules are affected by this proposed rule.
§80.5.Peer Review Process.
(a) During the investigation of a complaint, the Enforcement Committee may order the outside peer review of a licensee's standard of patient care or billing practices.
(b) To qualify as a peer reviewer, a person shall:
(1) have an active license with the Board or appropriate professional credentials;
(2) have no prior violations of Board statutes or rules;
(3) have no open complaints;
(4) have no felony convictions or misdemeanor convictions for a crime of moral turpitude;
(5) show sufficient training or experience to offer an informed opinion;
(6) show knowledge of accepted standards of chiropractic care in Texas or other professional standards related to the alleged violation; and
(7) have an acceptable malpractice complaint history.
(c) A peer reviewer may not review a complaint if the peer reviewer has:
(1) a direct financial interest or relationship with any party or witness to the complaint that gives the appearance of a conflict of interest;
(2) a familial relationship within the third degree of affinity with any party or witness;
(3) personal knowledge of any information about any party or witness related to the complaint; or
(4) any other reason where the peer reviewer could not fairly and impartially consider the complaint.
(d) The Board shall maintain a list of peer reviewers and shall periodically audit the list to confirm their qualifications.
(e) Board staff shall select a peer reviewer when an investigator identifies a standard of care or other professional standard beyond the expertise of staff in the complaint.
(f) Board staff shall randomly select a peer reviewer from the list based on the peer reviewer's qualifications to review the type of complaint.
(g) The executive director shall remove a peer reviewer from the list for:
(1) failure to maintain the required qualifications;
(2) failure to timely complete reports;
(3) failure to inform the Board of potential or apparent conflicts of interest; or
(4) failure to maintain the confidentiality of any matter.
(h) The Board shall provide to the peer reviewer:
(1) the complaint;
(2) the investigator's report;
(3) the Board's peer review report form; and
(4) a contract for services.
(i) The peer reviewer shall review all relevant information to determine if a licensee violated the applicable standard of care in Texas or other professional standard and prepare a written report.
(j) The peer reviewer's report shall include:
(1) the peer reviewer's qualifications;
(2) the relevant facts of the complaint;
(3) the applicable standard of care or other professional standard;
(4) an application of the standard of care in Texas or other professional standard to the facts;
(5) a finding of whether the standard of care or other professional standard was met; and
(6) the clinical basis for the findings, including the use of any peer-reviewed journals, studies, or reports.
(k) A peer reviewer may not offer a legal opinion as to whether a particular statute, Board rule, or other law was violated.
(l) A peer reviewer may not offer an opinion on the legal liability of any individual for an injury sustained by a patient.
(m) The peer reviewer shall complete and return the review to the Board within 30 days, unless the peer reviewer requests more time due to the complaint's complexity.
(n) The Board shall give the peer reviewer's report to the licensee within 30 days of receipt.
(o) The Enforcement Committee shall consider the report and the licensee's response in determining if a violation occurred.
(p) The Enforcement Committee may order additional peer reviews if necessary.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2023.
TRD-202302263
Christopher Burnett
General Counsel
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-6700
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §80.8 (Board Member and Staff Initiated Complaints). This proposed action puts into rule the Board's current policy for processing complaints initiated by Board members and staff.
As practicing chiropractors, Board members interact with other licensees. On occasion, a Board (or staff) member may become aware of facts that indicate that another licensee may be in violation of the statutes and rules under the Board's jurisdiction and thus need to file a formal complaint. The proposed new rule formalizes the Board's procedures for processing those complaints.
The intent behind the new rule is transparency: the licensee who is the subject of a complaint under this rule will know the identity of the Board or staff member making the complaint; know that the allegations were considered independently by the Board's executive director before the complaint is forwarded to the Board's enforcement director; and know that any Board member filing a complaint will be prohibited from voting on or considering the results of any investigation or subsequent administrative action taken by the Board on the complaint.
The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the rule as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).
Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is greater formal transparency in the Board's procedures for processing complaints initiated by Board members and staff.
The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed new 22 TAC §80.8. For each year of the first five years the proposed rule is in effect, Mr. Fortner has determined:
(1) The proposed rule does not create or eliminate a government program.
(2) Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Board.
(4) The proposed rule does not require a decrease or increase in fees paid to the Board.
(5) The proposed rule does not create a new regulation.
(6) The proposal does repeal existing Board rules for an administrative process.
(7) The proposed rule does not decrease the number of individuals subject to the rule's applicability.
(8) The proposed rule does not positively or adversely affect the state economy.
Comments on the proposed rule or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 1801 North Congress Avenue, Suite 10.500, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed rule is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.
The rule is proposed under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic), §201.2205 (which requires the Board to adopt rules concerning the investigation of a complaint), and §201.2065 (which prohibits the Board from accepting anonymous complaints).
No other statutes or rules are affected by this proposed rule.
§80.8.Board Member and Staff Initiated Complaints.
(a) A Board member or staff shall notify the Board's executive director in writing of any potential violation by an individual of a statute or rule under the Board's jurisdiction.
(b) The executive director shall evaluate the written statement (and any supporting evidence) of the Board member or staff about the potential violation within five days of receipt.
(c) If the executive director determines there is sufficient grounds to begin a formal complaint, the executive director shall forward the written statement (and any supporting evidence) to the Board's director of enforcement with instructions to open an investigation.
(d) The director of enforcement shall name both the executive director and the Board member or staff as the complainant in an investigation opened under this section.
(e) A Board member who initiates a complaint under this section shall recuse himself from any consideration of the complaint by the Board.
(f) A Board member or staff who initiated a complaint under this section shall respond to a request for additional information by a Board investigator or the Enforcement Committee only in writing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2023.
TRD-202302264
Christopher Burnett
General Counsel
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-6700
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §82.7 (Employee Equity Salary Adjustments). The General Appropriations Act (GAA) authorizes an agency executive director to make employee equity salary adjustments only if the agency has adopted a rule permitting that action. This proposed rule, which is compliant with the terms of the GAA (Article IX, §3.07, 87th Legislature - Regular Session, 2021 (or successor provisions), permits the agency executive director to make such adjustments if necessary.
The Board's Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the rule as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).
Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is to permit the Board's executive director to make employee equity salary adjustments, if needed, in compliance with the requirements of the General Appropriations Act.
The Board provides this Government Growth Impact Statement, pursuant to Texas Government Code §2001.0221, for the proposed new 22 TAC §82.7. For each year of the first five years the proposed rule is in effect, Mr. Fortner has determined:
(1) The proposed rule does not create or eliminate a government program.
(2) Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Board.
(4) The proposed rule does not require a decrease or increase in fees paid to the Board.
(5) The proposed rule does not create a new regulation.
(6) The proposal does repeal existing Board rules for an administrative process.
(7) The proposed rule does not decrease the number of individuals subject to the rule's applicability.
(8) The proposed rule does not positively or adversely affect the state economy.
Comments on the proposed rule or a request for a public hearing may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 1801 North Congress Avenue, Suite 10.500, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705, no later than 30 days from the date that this proposed rule is published in the Texas Register. Please include the rule name and number in the subject line of any comments submitted by email.
The rule is proposed under Texas Occupations Code §201.152 (which authorizes the Board to adopt rules necessary to perform the Board's duties and to regulate the practice of chiropractic) and the General Appropriations Act, Article IX, §3.07 (87th Legislature - Regular Session, 2021) or successor provisions (which authorizes the Board to adopt rules concerning employee equity salary adjustments).
No other statutes or rules are affected by this proposed rule.
§82.7.Employee Equity Salary Adjustments.
(a) Pursuant to Senate Bill 1 (General Appropriations Act), Article IX, Section 3.07 (87th Legislature - Regular Session, 2021) or successor provisions, the Board's executive director may adjust the salary rate of an employee whose position is classified under the position classification plan to any rate within the employee's salary group range as necessary to maintain desirable salary relationships:
(1) between and among employees of the Board; or
(2) between employees of the Board and employees who hold similar positions in the relevant labor market.
(b) In determining desirable salary relationships under subsection (a) of this section, the executive director shall consider the education, skills, related work experience, length of service, and job performance of Board employees and similar employees in the relevant labor market.
(c) The executive director may award an equity adjustment to an employee under this section only if the adjustment does not conflict with other law.
(d) The executive director's analysis under subsection (b) of this section shall be in writing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2023.
TRD-202302265
Christopher Burnett
General Counsel
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-6700
CHAPTER 102. FEES
The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §102.1, concerning fees. The proposed amendment reflects the fees required to submit the following applications to the Board: Registered Dental Assistant (RDA) Course Provider Application, and Continuing Education (CE) Provider Application.
FISCAL NOTE: Casey Nichols, Executive Director, has determined that for the first five-year period the proposed rule is in effect, the proposed rule does not have foreseeable implications relating to cost or revenues of the state or local governments.
PUBLIC BENEFIT-COST NOTE: Casey Nichols has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the protection of public safety and welfare.
LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.
SMALL AND MICRO-BUSINESS, RURAL COMMUNITY IMPACT STATEMENT: Casey Nichols has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.
GOVERNMENT GROWTH IMPACT STATEMENT: The Board has determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: (1) the rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does require an increase in fees paid to the agency for the applications pertaining to RDA course providers and CE providers; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase or decrease the number of individuals subject to it; and (8) the proposed rule does not positively or adversely affect the state's economy.
COST TO REGULATED PERSONS: This proposed rule does not impose a cost on a regulated person and, therefore, is not subject to Tex. Gov't. Code §2001.0045.
Comments on the proposed amendment may be submitted to Casey Nichols, Executive Director, 1801 Congress Avenue, Suite 8.600, Austin, Texas 78701, by fax to (512) 649-2482, or by email to official_rules_comments@tsbde.texas.gov for 30 days following the date that the proposed rule is published in the Texas Register. To be considered for purposes of this rulemaking, comments must be: (1) postmarked or shipped by the last day of the comment period; or (2) faxed or e-mailed by midnight on the last day of the comment period.
This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §254.004, which directs the Board to establish reasonable and necessary fees sufficient to cover the cost of administering the Board's duties.
No statutes are affected by this proposed rule.
§102.1.Fees.
(a) Effective September 1, 2023 [October
1, 2020], the Board has established the following reasonable
and necessary fees for the administration of its function. Upon initial
licensure or registration, and at each renewal, the fees provided
in subsections (b) - (d) of this section shall be due and payable
to the Board.
Figure; 22 TAC §102.1(a) (.pdf)
[Figure; 22 TAC §102.1(a)]
(b) - (f) (No change.)
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 26, 2023.
TRD-202302271
Lauren Studdard
General Counsel
State Board of Dental Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-8910
The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §110.18, concerning inspection of sedation/anesthesia providers. The proposed amendment gives the Board discretion on whether to pursue revocation of a dental license if a permit holder who is in an inactive status is found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia while in inactive status. The proposed amendment also gives the Board discretion on whether to pursue revocation of a dental license if a permit holder who is an exempt location status is found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia in a non-exempt location.
FISCAL NOTE: Casey Nichols, Executive Director, has determined that for the first five-year period the proposed rule is in effect, the proposed rule does not have foreseeable implications relating to cost or revenues of the state or local governments.
PUBLIC BENEFIT-COST NOTE: Casey Nichols has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the protection of public safety and welfare.
LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.
SMALL AND MICRO-BUSINESS, RURAL COMMUNITY IMPACT STATEMENT: Casey Nichols has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this rule.
GOVERNMENT GROWTH IMPACT STATEMENT: The Board has determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: (1) the rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does not require an increase in fees paid to the agency; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase or decrease the number of individuals subject to it; and (8) the proposed rule does not positively or adversely affect the state's economy.
COST TO REGULATED PERSONS: This proposed rule does not impose a cost on a regulated person and, therefore, is not subject to Tex. Gov't. Code §2001.0045.
Comments on the proposed amendment may be submitted to Casey Nichols, Executive Director, 1801 Congress Avenue, Suite 8.600, Austin, Texas 78701, by fax to (512) 649-2482, or by email to official_rules_comments@tsbde.texas.gov for 30 days following the date that the proposed rule is published in the Texas Register. To be considered for purposes of this rulemaking, comments must be: (1) postmarked or shipped by the last day of the comment period; or (2) faxed or e-mailed by midnight on the last day of the comment period.
This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.
No statutes are affected by this proposed rule.
§110.18.Inspection of Sedation/Anesthesia Providers.
(a) The Board may conduct inspections to enforce Chapter 110 of this title (relating to Sedation and Anesthesia), including inspections of a licensee, an office site, equipment, a facility, and any document required by Board rules. The inspections shall not identify violations outside the applicable sedation/anesthesia rules in effect for each permit level at the time of the inspection. The Board may employ Board staff or contract with another state agency or qualified person to conduct these inspections.
(b) Unless it would jeopardize an ongoing investigation, the Board shall provide at least ten business days' notice before conducting an on-site inspection under this section.
(c) Regardless of issue date, all level 2, 3 and 4 permit holders will be subject to at least one inspection prior to September 1, 2022. All level 2, 3, and 4 permit holders who received their initial permit after March 1, 2018, must be inspected within a year of receiving their permit.
(d) Compliance/Tier 1 inspections: The initial inspection will be a compliance inspection, in which a Board staff member will evaluate the permit holder's compliance with the Board's rules through completing a checklist and auditing one sedation/anesthesia record of the inspector's choosing that was completed prior to the date the Board notified the licensee of the inspection. The record shall be of treatment for the highest level of sedation/anesthesia permit held by the permit holder, and will apply the Board rules in effect at the time the patient was treated. The inspector shall be a member of Board staff and will receive training in recognizing the checklist requirements and in evaluating sedation/anesthesia records. If the inspection results in the identification of a violation of the Board's rules found in Chapter 110, the permit holder must immediately cease providing sedation/anesthesia services until satisfactory proof is provided to Board staff that the violation has been corrected. Board staff shall provide contact information for both an inspector and supervisor of the inspector so that the permit holder may provide proof of remediation as soon as possible. Any violation of this cease and desist requirement shall represent grounds for disciplinary action. A failure by Board staff to respond within two business days to permit holder's satisfactory proof of remediation shall represent an affirmative defense to disciplinary action. Additionally, the permit holder shall pay an amount of not more than five hundred dollars ($500.00) as necessary to cover the expenses of additional review and inspection by Board staff as a result of any violations identified during the initial inspection. If, after a completed Compliance/Tier 1 inspection, the only violation(s) identified by Board staff relate to the time-interval recording requirements contained in the inspection items numbered 3 and 4 of the "Patient Record Audit" portion of the attached graphic "Anesthesia Levels 2-4 Inspection Form" for this section, then the violation(s) may be remedied by the Respondent through the execution of a sworn affidavit provided by Board staff. The Respondent's affidavit must attest that the Respondent shall observe the requirements of the applicable sedation/anesthesia rule sections requiring time interval recording for each permit level the Respondent holds. The inspection checklist can be previewed here:
Figure: 22 TAC §110.18(d) (No change.)
(e) Risk-based/Tier 2 inspections: A permit holder with a violation on a compliance/tier 1 inspection that is not remedied within thirty (30) days shall be referred to a risk-based inspection. Additionally, a Board member sitting on an informal settlement conference panel pursuant to Tex. Occ. Code §263.0072 may refer a permit holder to a risk-based inspection. The risk-based inspection will include the same factors as a compliance inspection, as well as a competency evaluation consisting of an audit of five sedation/anesthesia records of the inspector's choosing. The records shall be of treatment records for the highest level of sedation/anesthesia permit held by the permit holder, and shall apply the Board rules in effect at the time the patient was treated. Review of the five sedation/anesthesia records shall be performed by members of the Board's dental review panel process pursuant to Tex. Occ. Code §255.0065 who currently hold the same or higher level of sedation/anesthesia permit. The dental review panel reviewer shall prepare a report and note any violations or concerns with the permit holder's competency, and the report shall be reviewed following the procedure described in Tex. Occ. Code §255.0067. Any violation found during the risk-based inspection may result in the filing of a complaint and complaint resolution pursuant to the Board's informal disposition process in §107.63 of this title (relating to Informal Disposition and Mediation). The Executive Committee of the Board may order the emergency temporary suspension of a permit if the risk-based inspection reveals evidence of a clear, imminent, or continuing threat to the health or well-being of the public.
(f) Inactive status: A permit holder may forego an
inspection if they submit a notarized, Board-issued affidavit that
they will not administer levels 2, 3, or 4 sedation/anesthesia until
first notifying the Board in writing that they wish to resume those
activities. A permit holder must complete a compliance/Tier 1 inspection
prior to resuming the administration of sedation/anesthesia at the
inactive permit level. The permit holder must comply with continuing
education and any other permit requirements during this time. During
the period of inactive status, a permit holder may not delegate any
inactive-status level of sedation/anesthesia to a certified registered
nurse anesthetist or any other dental or medical professional except
a dentist with a permit issued by the Board for the procedure being
performed or a physician anesthesiologist licensed by the Texas Medical
Board. If the permit holder is later found to have administered or
delegated the administration of level 2, 3, or 4 sedation/anesthesia
while in inactive status, the Board may [shall]
pursue revocation of their dental license.
(g) Exempt-location status: The Board shall not inspect
a level 2, 3, or 4 permit holder who provides those services exclusively
in a state-licensed hospital or state-licensed ambulatory surgery
center. The permit holder must attest to that fact with a notarized,
Board-issued affidavit and may not provide those services at a non-exempt
location until first notifying the Board in writing and successfully
completing a compliance/Tier 1 inspection. During the period of exempt-location
status, a permit holder may not delegate the administration of any
level of sedation/anesthesia to a dental or medical professional outside
a state-licensed hospital or state-licensed ambulatory surgery center.
If they are later found to have administered or delegated the administration
of level 2, 3, or 4 sedation/anesthesia in a non-exempt location,
the Board may [shall] pursue revocation of their
dental license.
(h) Group practice inspections. The Board shall permit group practices to request an inspection of all permit holders in a single location during one inspection visit. Permit holders shall inform Board staff upon receiving notice of an inspection their wish to receive a combined group practice inspection, and Board staff shall accommodate this request as feasible while ensuring a group inspection shall not jeopardize an ongoing investigation. Board staff shall ensure that group practice inspection requests do not create unnecessary delays to the completion of the inspection process and may decline the request as needed to ensure timely completion of all scheduled inspections.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 26, 2023.
TRD-202302273
Lauren Studdard
General Counsel
State Board of Dental Examiners
Earliest possible date of adoption: August 6, 2023
For further information, please call: (512) 305-8910