Texas Board of Dental Examiners

Mr. Phan is familiar with the many types of alleged violations facing a dentist and the different issues presented with each of the alleged violations of practice. Mr. Phan fully understands the disciplinary process during all phases, having prosecuted countless hundreds of violations of the Dental Practice Act and the Board’s rules.

Mr. Phan, who was entrusted to handle the entirety of the disciplinary cases at the Texas State Board of Dental Examiners during his time as the head attorney for the Texas State Board of Dental Examiners, has used what he attained at the Texas State Board of Dental Examiners to successfully defend Texas dentists in Board disciplinary complaints.

Dentists provide meaningful care to patients. Their standing in the community, both to the public and among peers, has been forged through hard work and determination. Thus, even dentists who practice diligently may find themselves facing a complaint. The firm understands and appreciates the feelings of stress, anxiety, and angst associated with receiving a Texas State Board of Dental Examiners complaint letter alleging serious allegations of misconduct. The firm understands that a dentist’s reputation, good standing, and livelihood are at stake. Due to this understanding, the firm appreciates that this occurrence has concrete effects on real people, affecting the dentist’s ability to practice and care for patients. As such, the firm defends each and every case it handles with the utmost seriousness.

During the Texas State Board of Dental Examiners’ disciplinary complaint process, it is important to realize and recognize that there are attorneys and law firms that are devoted strictly to defending dentists with respect to complaints brought by the Texas State Board of Dental Examiners that affect their licenses. The Phan Law Firm, P.C., is proud to consider itself in this group and as one of the leaders in this area, devoting its practice to defending dentists and other professionals.

Dentists will receive written notification from the Texas State Board of Dental Examiners that they are being investigated. The written notification will contain each allegation of wrongdoing. Unlike other Boards, in this initial notice of complaint letter, the Texas State Board of Dental Examiners does not specifically alert the dentist, referred to in this setting as the Respondent, that he or she is empowered and entitled to hire the assistance of an attorney.

Although not specifically informed, a dentist should understand that he or she is entitled to hire an attorney to assist in this complaint process. A dentist should be aware that once an attorney is hired, the attorney is able to speak, visit, and negotiate directly with the Board investigatory staff and Board attorney on behalf of the dentist.

When an attorney is hired, the Texas State Board of Dental Examiners can no longer legally contact or visit directly with the dentist without that dentist’s attorney’s permission. This includes preventing an investigator from showing up personally to the dentist’s office as the Texas State Board of Dental Examiners is authorized to do. In the firm’s experience, cases that attorneys handle receive different treatment than those without.

How do we know this? When Mr. Phan was the General Counsel at the Texas State Board of Dental Examiners, cases with attorneys necessarily required more diligence from the Staff due to the legal arguments advanced by the attorneys casting doubt upon the Staff as to whether the allegations could be proven or whether the discipline sought aligned with the violation(s) in the matter. Invariably, the types of arguments raised by the attorneys would not ever have been raised by those dentists without an attorney. Over the years, in private practice defending dentists before the Texas State Board of Dental Examiners, this remains true in terms of how the Texas State Board of Dental Examiners treats the firm’s dentist clients.

Once a Board complaint is received from the originated source, the Texas State Board of Dental Examiners (depending on the type of violation(s) involved) opens up an investigation against the dentist. A complaint letter is prepared and sent to the dentist at his or her last known address on file with the Texas State Board of Dental Examiners. More often than not, the source of the complaint is from a patient that the dentist has treated or is currently treating. However, this is not always the case, as oftentimes, the complaint can originate from other sources, including the dentist, given that a dentist has a duty to self-report a patient’s death or hospitalization.

This initial letter outlines the allegation(s) against the dentist. This letter provides cursory information and notice to the dentist that a complaint/investigation has commenced. In the firm’s experience, the allegation(s) appear purposefully vague in nature. For example, it may contain the initials of the patient, and although it may be an alleged violation involving the minimum standard of care, it may provide only a few words as to the claim of violation.

The Texas State Board of Dental Examiners will then inform the dentist in this communication that he or she must respond to the Board and respond specifically with an explanation of the allegation(s) contained in the letter. This response includes providing the Texas State Board of Dental Examiners with documents and information that includes the complete patient records, radiographs, and models, along with a signed checklist of items requested and a notarized affidavit of records.

In light of the information that the dentist is required to provide to the Texas State Board of Dental Examiners from the onset, it is imperative that any dentist facing this situation hire experienced legal counsel to advise them during the entirety of this process. Depending on the type of allegation(s) in dispute, the discussion with an experienced attorney can determine what the allegation(s) involves, what potential issues the case may contain not known to the Texas Board of Dental Examiners and not noticed in the complaint letter, the legal arguments to raise, and the need, if necessary, to consult another dentist to seek his or her opinion as to the standard of care and whether or not it was complied with for that particular case.

As the investigatory process evolves, the Texas State Board of Dental Examiners, as part of its investigation process, will most likely attempt to use the information provided by the dentists to determine whether there are additional violations. Because the investigatory process examines the entirety of the records provided, the investigation can expand to include other areas not originally noticed in the complaint letter. For example, if the initial complaint was from a patient who complained that the dentist did not charge a fair fee, making the complaint involving a fee dispute, the Texas State Board of Dental Examiners may also bring forth a failure to meet the minimum standard of care if it determined, for example, that the dentist did not record baseline vital signs in the dental record during its examination of the records.

Suppose the Texas State Board of Dental Examiners believes, during the course of its investigation, as the case was reviewed by another dentist utilized by the Texas State Board of Dental Examiners for that purpose, that a dentist has committed violations. In that case, it will alert the dentist as to this determination and afford the dentist an opportunity to appear before Board members, who are primarily dentists, Board staff, and Board staff attorney(s), to visit about the matter in a one-on-one setting. This process is referred to as an Informal Settlement Conference.

Although it is referred to as “informal,” it is anything but informal as this is a procedure that requests the dentists to appear to answer questions from Board members and Staff and to defend his or her conduct. Prior to the Informal Settlement Conference, the Texas State Board of Dental Examiners will have provided the dentist with written information as to its proposed findings and areas it believes have been violated. A dentist must know that this is not a mandatory appearance and that if the dentist does opt to appear, he or she is allowed the presence of legal counsel throughout the Informal Settlement Conference alongside the dentist and can fully participate. Decisions as to whether to appear, what to present, and how it should be presented are determined with the assistance of the Phan Law Firm, P.C., prior to this conference.

Following the visit, if the panel of the Informal Settlement Conference believes that a dentist has committed violations, the panel will inform the dentist of the recommendation and the discipline it plans on seeking. This process is a proposed disciplinary order, otherwise known as an Agreed Order. The proposed Agreed Order will list specifically each violation and the provision in the law for that violation. The proposed Agreed Order will also contain the proposed disciplinary mark.

A dentist who receives this proposed Agreed Order must decide whether to accept the proposed discipline or to contest further the determinations of the Texas State Board of Dental Examiners if he or she disagrees, either contested parts of the proposed Agreed Order that are objectionable or the entirety of the proposed Agreed Order. It is important to understand that if a dentist agrees with the proposed Agreed Order and signs it, this will be disciplinary action on the dentist’s license that will be permanent for as long as the dentist holds a license.

If the dentist does not agree with the proposed Agreed Order, the Texas State Board of Dental Examiners will file a document known as Formal Charges. This is a legal document that specifies each allegation against the dentist and the legal authority for that claim.

Once this document is filed, the complaint itself becomes public in nature as the Formal Charges are attached next to the dentist’s licensure information on the Board’s website.

The Texas State Board of Dental Examiners then begins the formal resolution process by filing the matter for a contested case hearing (i.e., trial) with the State Office of Administrative Hearings (SOAH) before an Administrative Law Judge (ALJ).

In this formal proceeding, the Texas State Board of Dental Examiners attempts to persuade the ALJ, with the evidence it has accumulated, that the dentist is in violation. Because the dentist is a party to this proceeding, he or she will assuredly be called as a witness to this proceeding.

One must know that a dentist who enters this phase of the proceedings will be afforded due process, but one must understand the process of this formal proceeding and not ignore it. Suppose the Texas State Board of Dental Examiners is successful in persuaded the ALJ. In that case, the ALJ will issue a decision called a Proposal for Decision with findings of fact and conclusions of law.

If there are findings of violations, the dentist invariably (with few exceptions) will receive discipline on their license from the Board.