Section 374.3 - Complaint Process(a) The Act, Subchapters G and H authorizes the board to investigate complaints.(b) Filing and receipt of complaints. (1) Complaints may be received in writing. Complainants shall be invited to explain their allegations. The staff will provide reasonable assistance to a person who wishes to file a complaint. Anonymous complaints will be accepted, but it is understood that the lack of a witness or the ability to secure additional information from the anonymous complainant may result in the board's inability to secure sufficient evidence to pursue action against the alleged violator.(2) When a complaint is received, the board shall notify the parties to the complaint of the status of the complaint, unless the notice would jeopardize an undercover investigation. The board shall notify the parties to the complaint at least as frequently as quarterly until there is final disposition of the complaint, in accordance with the Act, §454.152.(3) Not later than the tenth calendar day after a complaint is received, the staff shall place a timeline for completion of the investigation in the file and notify all parties to the complaint. Any change in the timeline must be noted in the file and all parties notified of the change not later than seven calendar days after the change was made. For purposes of this rule, completion of an investigation in a disciplinary matter occurs when:(A) staff determines there is insufficient evidence to demonstrate a violation of the Act, board rules, or a board order; or(B) staff determines that there is sufficient evidence to demonstrate a violation of the Act, board rules, or a board order and drafts proposed formal charges.(4) The staff shall provide summary data of complaints extending beyond the complaint timeline to the coordinator and the executive director who will then notify the board at a regularly scheduled meeting.(5) The board shall keep an information file on each complaint submitted to the board. The file will be kept current and include a record of all persons contacted in relation to the complaint, notes about the findings throughout the complaint process, and other relevant information.(6) The Investigation Committee may determine when and if a private investigator is needed for processing of a complaint.(7) Complaints shall be assigned a priority status in the following categories:(A) Those indicating that credible evidence exists showing a violation of the Occupational Therapy Practice Act involving actual deception, fraud, or injury to clients or the public or a high probability of immediate deception, fraud, or injury to clients or the public.(B) Those indicating that credible evidence exists showing a violation of the Occupational Therapy Practice Act involving a high probability of potential deception, fraud, or injury to clients or the public.(C) Those indicating that credible evidence exists showing a violation of the Occupational Therapy Practice Act involving a potential for deception, fraud, or injury to clients or the public.(D) All other complaints.(c) The Executive Director and the Investigation Committee will take appropriate action to investigate the complaint or take other appropriate action. (1) The Investigation Committee will hold meetings, at least quarterly, to review complaints, to determine if there is sufficient evidence to substantiate the allegations, to hold informal conferences, to identify appropriate discipline for violations, and to make recommendations for disciplinary action to the board.(2) The Investigation Committee reviews the evidence that has been submitted and gathered by the investigator and, typically makes one of the following determinations: (A) The scope of the complaint is beyond the authority of the board and possibly may be handled by another entity. The committee may refer the complainant to an appropriate entity.(B) There is insufficient evidence to substantiate that a violation of the Act or rules has occurred, thus closing the investigation.(C) Evidence indicates a possible violation did occur and further investigation is needed.(D) Evidence indicates a violation did occur and disciplinary action is not warranted.(E) Evidence indicates a violation did occur and disciplinary action is warranted.(d) Preliminary notice. (1) Prior to commencing disciplinary proceedings, the staff shall serve the respondent with written notice in accordance with the Texas Government Code, § 2001.054(c).(2) Such notice shall contain a statement of the facts or conduct alleged to warrant an adverse action. The notice shall invite the respondent to show compliance with all requirements of the law for retention of the license.(3) The respondent shall have not less than ten calendar days to respond in writing.(e) Agreed orders.(1) An agreed order is a legal document and the formal means by which a respondent accepts the disciplinary action imposed by the board. To be a valid document it must be approved by the board and signed by both the respondent and the chair of the board.(2) An agreed order may be negotiated with any person under the jurisdiction of the board, the terms of which shall be approved by the Investigation Committee.(3) The agreed order will be sent to the respondent. To accept the agreed order, the respondent must sign and return it to the board within ten calendar days after receipt. Inaction by the respondent constitutes rejection. If the respondent rejects the proposed settlement, the matter shall be referred to the Investigation Committee for appropriate action.(4) The agreed order with the signature of the respondent will be presented to the board. The proposed agreed order shall have no effect until such time as the board may, at a scheduled meeting, take action approving the agreed order. The agreed order will include a provision requiring the respondent reimburse the board for all investigative expenses.(5) The respondent 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 respondent is voluntary.(6) Consideration by the board will include the following: (A) Any board member who participated in the investigation of the complaint or formulation of the proposed agreed order may not vote on the agreed order.(B) The respondent's identity will not be made available to the board until after the board has reviewed and made a decision on the agreed order.(C) Upon an affirmative majority vote, the board shall authorize the agreed order, and the chair of the board will sign it. The board-approved agreed order will be provided to the respondent. A copy of the order will then be placed in the licensee's permanent file.(D) If the board does not approve the agreed order, the matter will be referred to the Investigation Committee or the Executive Director for other appropriate action. The respondent and the complainant shall be so informed.(f) Dismissal of complaints. (1) Complaints may be dismissed for the following reasons:(A) No evidence available.(B) Insufficient evidence.(C) Other reasons which the Investigation Committee believes are justification for dismissal.(2) Upon the decision of the Investigation Committee to dismiss a complaint, the person who filed the complaint is provided a letter explaining why the complaint has been dismissed.(3) On a quarterly basis, the board is provided with a list of the complaints that were dismissed and the reasons for the dismissals.(4) At least annually the board will advise the Executive Council of complaints which have been disposed.(g) Informal conference. (1) At any time after the filing of a complaint, an informal conference may be held prior to the contested case hearing for one or more of the following purposes: (A) Clarifying the issues;(B) Considering proposed admissions or stipulations of fact;(C) Reviewing the procedure to govern the contested case hearing;(D) Exchanging witness lists and agreeing to limit the number of witnesses; and/or(E) Doing any act that may simplify the proceedings, and dispose of matters in controversy, including settlement of issues in dispute and preparation of an agreed order for presentation to the board as provided herein.(2) A respondent may request an informal settlement conference; however, the decision to hold a conference shall be made by the Executive Director or the Investigation Committee.(3) Participation in an informal conference shall not be mandatory for the licensee or applicant, nor is it a prerequisite to a formal hearing.(4) The Executive Director shall decide upon the time, date, and place of the settlement conference and provide written notice to the respondent of the same. Notice shall be provided no less than ten calendar days prior to the date of the conference to the last known address of the respondent. The ten days shall begin on the date of mailing. The respondent may waive the ten-day notice requirement.(A) The notice shall inform the respondent of the following:(i) the nature of the alleged violation;(ii) that the respondent may be represented by legal counsel;(iii) that the respondent may offer the testimony of witnesses and present other evidence as may be appropriate;(iv) that a board member may be present;(v) that a representative of the Office of the Attorney General will be present;(vi) that the respondent's attendance and participation is voluntary;(vii) that the complainant and any client involved in the alleged violations may be present; and(viii) that the settlement conference shall be canceled if the respondent notifies the Executive Director that he or she will not attend.(B) A copy of the board's rules concerning informal disposition shall be enclosed with the notice of the settlement conference.(5) The notice of the settlement conference shall be sent to the complainant's last known address. The complainant shall be informed that he or she may appear and testify or may submit a written statement for consideration at the settlement conference. The complainant shall be notified if the conference is canceled.(6) Participants in the informal conference may include a board member, agency staff, the complainant, the respondent, attorneys representing any of the participants, and any other persons determined by the Investigation Committee or the Executive Director to be necessary for proper conduct of the conference. All other persons may be excluded.(7) The settlement conference shall be informal and shall not follow the procedures established in this chapter for contested cases and formal hearings.(8) The respondent, the respondent's attorney, a board member, and board staff may question witnesses, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate.(9) An attorney from the Office of the Attorney General shall attend each settlement conference. The board member or Executive Director may call upon the attorney at any time for assistance in the settlement conference.(10) The respondent shall be afforded the opportunity to make statements on his or her own behalf.(11) Access to the board's investigative file may be prohibited or limited in accordance with the Administrative Procedures Act (APA), Chapter 2001, Texas Government Code, and the Open Records Act, Chapter 552, Texas Government Code.(12) No formal recording of the settlement conference shall be made.(13) At the conclusion of the settlement conference, the board 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 Occupational Therapy Practice Act. The board member or the Executive Director may also conclude that the board lacks jurisdiction, 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.(h) The board follows the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, for resolution of complaints as a contested case. A copy of the APA procedures may be obtained from the board.(i) Should the recommendation for an informal disposition not be accepted by the respondent, the complaint shall be referred back to the Investigation Committee for appropriate action. The committee shall determine if the case should be referred to the State Office of Administrative Hearings (SOAH) or dismissed for insufficient evidence or other reasons justifying a dismissal.(j) If the Investigation Committee determines that a violation has occurred and the respondent is not under the jurisdiction of the board, the committee has the option of referring the case to the appropriate authority: district attorney, county attorney, etc.40 Tex. Admin. Code § 374.3
The provisions of this §374.3 adopted to be effective May 8, 1996, 21 TexReg 3718; amended to be effective July 22, 2001, 26 TexReg 5444; Amended by Texas Register, Volume 47, Number 46, November 18, 2022, TexReg 7747, eff. 12/1/2022