Current through Reg. 50, No. 13; March 28, 2025
(a) The Board and the State Office of
Administrative Hearings (SOAH) shall utilize the Disciplinary Matrix set forth
in subsection (b) of this section in all disciplinary and eligibility
matters.
(b) The Disciplinary
Matrix is as follows:
Attached
Graphic
(c) The
Board and SOAH shall consider the following factors in conjunction with the
Disciplinary Matrix when determining the appropriate penalty/sanction in
disciplinary and eligibility matters. The mitigating and aggravating factors
specified in the Matrix are in addition to the factors listed in this
subsection. Further, the presence of mitigating factors in a particular case
does not constitute a requirement of dismissal of a violation of the Nursing
Practice Act (NPA) and/or Board rules. If multiple violations of the NPA and/or
Board rules are present in a single case, the most severe sanction recommended
by the Matrix for any one of the individual offenses should be considered by
the Board and SOAH pursuant to Tex. Occ. Code §
301.4531. The
following factors shall be analyzed in determining the tier and sanction level
of the Disciplinary Matrix for a particular violation or multiple violations of
the NPA and Board rules:
(1) evidence of
actual or potential harm to patients, clients, or the public;
(2) evidence of a lack of truthfulness or
trustworthiness;
(3) evidence of
misrepresentation(s) of knowledge, education, experience, credentials, or
skills which would lead a member of the public, an employer, a member of the
health-care team, or a patient to rely on the fact(s) misrepresented where such
reliance could be unsafe;
(4)
evidence of practice history;
(5)
evidence of present fitness to practice;
(6) whether the person has been subject to
previous disciplinary action by the Board or any other health care licensing
agency in Texas or another jurisdiction and, if so, the history of compliance
with those actions;
(7) the length
of time the person has practiced;
(8) the actual damages, physical, economic,
or otherwise, resulting from the violation;
(9) the deterrent effect of the penalty
imposed;
(10) attempts by the
person to correct or stop the violation;
(11) any mitigating or aggravating
circumstances, including those specified in the Disciplinary Matrix;
(12) the extent to which system dynamics in
the practice setting contributed to the problem;
(13) whether the person is being disciplined
for multiple violations of the NPA or its derivative rules and
orders;
(14) the seriousness of the
violation;
(15) the threat to
public safety;
(16) evidence of
good professional character as set forth and required by §
213.27 of this chapter (relating
to Good Professional Character);
(17) participation in a continuing education
course described in §
216.3(f) of this
title (relating to Requirements) completed not more than two years before the
start of the Board's investigation, if the nurse is being investigated by the
Board regarding the nurse's selection of clinical care for the treatment of
tick-borne diseases; and
(18) any
other matter that justice may require.
(d) Each specific act or instance of conduct
may be treated as a separate violation.
(e) The Board may, upon the finding of a
violation, enter an order imposing one or more of the following disciplinary
actions, with or without probationary stipulations:
(1) Denial of temporary permit or licensure
(including renewal, reinstatement/reactivation, or the return to direct patient
care from a limited license);
(2)
Approval of temporary permit or licensure (including renewal,
reinstatement/reactivation, or the return to direct patient care from a limited
license), with one or more reasonable probationary stipulations as a condition
of issuance, renewal, or reinstatement/reactivation. Additionally, the Board
may determine, in accordance with §301.468 of the NPA, that an order
denying a license application/petition, license renewal, license
reinstatement/reactivation, or temporary permit be probated. Reasonable
probationary stipulations may include, but are not limited to:
(A) submit to care, supervision, counseling,
or treatment by a health provider designated by the Board as a condition for
the issuance, renewal, or reinstatement/reactivation of the license or
temporary permit or the return to direct patient care from a limited
license;
(B) submit to an
evaluation as outlined in subsections (k) and (l) of this section and/or
pursuant to the Occupations Code §
301.4521;
(C) participate in a program of education or
counseling prescribed by the Board;
(D) limit specific nursing activities and/or
practice settings and/or require periodic Board review;
(E) practice for a specified period under the
direction of a registered nurse or vocational nurse designated by the
Board;
(F) abstain from
unauthorized use of drugs and alcohol to be verified by random drug testing
conducted through urinalysis; or
(G) perform public service which the Board
considers appropriate;
(3) Issuance of a Warning. The issuance of a
Warning shall include reasonable probationary stipulations which may include,
but are not limited to, one or more of the following:
(A) submit to care, supervision, counseling,
or treatment by a health provider designated by the Board;
(B) submit to an evaluation as outlined in
subsections (k) and (l) of this section and/or pursuant to the Occupations Code
§
301.4521;
(C) participate in a program of education or
counseling prescribed by the Board;
(D) limit specific nursing activities and/or
practice settings and/or require periodic Board review;
(E) practice for a specified period of at
least one year under the direction of a registered nurse or vocational nurse
designated by the Board;
(F)
abstain from unauthorized use of drugs and alcohol to be verified by random
drug testing conducted through urinalysis; or
(G) perform public service which the Board
considers appropriate;
(4) Issuance of a Reprimand. The issuance of
a Reprimand shall include reasonable probationary stipulations which may
include, but are not limited to, one or more of the following:
(A) submit to care, supervision, counseling,
or treatment by a health provider designated by the Board;
(B) submit to an evaluation as outlined in
subsections (k) and (l) of this section and/or pursuant to the Occupations Code
§
301.4521;
(C) participate in a program of education or
counseling prescribed by the Board;
(D) limit specific nursing activities and/or
practice settings and/or require periodic Board review;
(E) practice for a specified period of at
least two years under the direction of a registered nurse or vocational nurse
designated by the Board;
(F)
abstain from unauthorized use of drugs and alcohol to be verified by random
drug testing conducted through urinalysis; or
(G) perform public service which the Board
considers appropriate;
(5) Limitation or restriction of the person's
license or permit, including limits on specific nursing activities and/or
practice settings and/or periodic Board review;
(6) Suspension of the person's license or
permit. The Board may determine that the order of suspension be enforced and
active for a specific period and/or probated with reasonable probationary
stipulations as a condition for lifting or staying the order of suspension.
Reasonable probationary stipulations may include, but are not limited to, one
or more of the following:
(A) submit to care,
supervision, counseling, or treatment by a health provider designated by the
Board;
(B) submit to an evaluation
as outlined in subsections (k) and (l) of this section and/or pursuant to the
Occupations Code §
301.4521;
(C) participate in a program of education or
counseling prescribed by the Board;
(D) limit specific nursing activities and/or
practice settings and/or require periodic Board review;
(E) practice for a specified period of not
less than two years under the direction of a registered nurse or vocational
nurse designated by the Board;
(F)
abstain from unauthorized use of drugs and alcohol to be verified by random
drug testing conducted through urinalysis; or
(G) perform public service which the Board
considers appropriate;
(7) Remit payment of an administrative
penalty or fine;
(8) Acceptance of
a Voluntary Surrender of a nurse's license(s) or permit;
(9) Revocation of the person's license or
permit;
(10) Require participation
in remedial education course or courses prescribed by the Board which are
designed to address those competency deficiencies identified by the
Board;
(11) Assessment of a fine as
set forth in §
213.32 of this chapter (relating
to Corrective Action Proceedings and Schedule of Administrative
Fines);
(12) Assessment of costs as
authorized by the Government Code §
2001.177;
and/or
(13) Require successful
completion of a Board approved peer assistance program.
(f) Every order issued by the Board shall
require the person subject to the order to participate in a program of
education or counseling prescribed by the Board, which at a minimum, will
include a review course in nursing jurisprudence and ethics.
(g) The following disciplinary and
eligibility sanction policies, as applicable, shall be used by the Executive
Director, Board and SOAH when determining the appropriate penalty/sanction in
disciplinary and eligibility matters:
(1)
Sanctions for Behavior Involving Fraud, Theft, and Deception, approved by the
Board and published on August 28, 2015, in the
Texas Register
and available on the Board's website at
http://www.bon.state.tx.us/disciplinaryaction/dsp.html;
(2) Sanctions for Behavior Involving Lying
and Falsification, approved by the Board and published on August 28, 2015, in
the
Texas Register and available on the Board's website at
http://www.bon.state.tx.us/disciplinaryaction/dsp.html;
(3) Sanctions for Sexual Misconduct approved
by the Board and published on February 22, 2008, in the
Texas
Register (33 TexReg 1649) and available on the Board's website at
http://www.bon.state.tx.us/disciplinaryaction/dsp.html;
and
(4) Sanctions for Substance Use
Disorders and Other Alcohol and Drug Related Conduct, approved by the Board and
published on August 28, 2015, in the
Texas Register and
available on the Board's website at
http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(h) To the extent that a conflict
exists between the Disciplinary Matrix and a disciplinary and eligibility
sanction policy described in subsection (g) of this section, the Disciplinary
Matrix controls.
(i) Unless
otherwise specified, fines shall be payable in full by cashier's check or money
order not later than the 45th day following the entry of an Order.
(j) The payment of a fine shall be in
addition to the full payment of all applicable fees and satisfaction of all
other applicable requirements of the NPA and the Board's rules.
(k) If the Board has probable cause to
believe that a person is unable to practice nursing with reasonable skill and
safety because of physical impairment, mental impairment, chemical
dependency/substance use disorder, or abuse/misuse of drugs or alcohol, the
Board may require an evaluation that meets the following standards:
(1) The evaluation must be conducted by a
Board-approved addictionologist, addictionist, medical doctor, neurologist,
doctor of osteopathy, psychologist, neuropsychologist, advanced practice
registered nurse, or psychiatrist, with credentials appropriate for the
specific evaluation, as determined by the Board. In all cases, the evaluator
must possess credentials, expertise, and experience appropriate for conducting
the evaluation, as determined by the Board. The evaluator must be familiar with
the duties appropriate to the nursing profession.
(2) The evaluation must be designed to
determine whether the suspected impairment prevents the person from practicing
nursing with reasonable skill and safety to patients. The evaluation must be
conducted pursuant to professionally recognized standards and methods. The
evaluation must include the utilization of objective tests and instruments with
valid and reliable validity scales designed to test the person's fitness to
practice. The evaluation may include testing of the person's psychological or
neuropsychological stability only if the person is suspected of mental
impairment, chemical dependency, or drug or alcohol abuse. If applicable, the
evaluation must include information regarding the person's prognosis and
medication regime.
(3) The person
subject to evaluation shall sign a release allowing the evaluator to review the
file compiled by the Board staff and a release that permits the evaluator to
release the evaluation to the Board. The person subject to evaluation should be
provided a copy of the evaluation upon completion by the evaluator; if not, the
Board will provide the person a copy.
(l) When determining evidence of present
fitness to practice because of known or reported unprofessional conduct, lack
of good professional character, or prior criminal history:
(1) The Board may request an evaluation
conducted by a Board-approved forensic psychologist, forensic psychiatrist, or
advanced practice registered nurse who:
(A)
evaluates the behavior in question or the prior criminal history of the
person;
(B) seeks to predict:
(i) the likelihood that the person subject to
evaluation will engage in the behavior in question or criminal activity again,
which may result in the person committing a second or subsequent reportable
violation or receiving a second or subsequent reportable adjudication or
conviction; and
(ii) the continuing
danger, if any, that the person poses to the community;
(C) is familiar with the duties appropriate
to the nursing profession;
(D)
conducts the evaluation pursuant to professionally recognized standards and
methods; and
(E) utilizes objective
tests and instruments, as determined and requested by the Board, that are
designed to test the psychological or neuropsychological stability, fitness to
practice, professional character, and/or veracity of the person subject to
evaluation.
(2) The
person subject to evaluation shall sign a release allowing the evaluator to
review the file compiled by Board staff and a release that permits the
evaluator to release the evaluation to the Board.
(3) The person subject to evaluation should
be provided a copy of the evaluation upon completion by the evaluator; if not,
the Board will provide the person a copy.
(m) Notwithstanding any other provision
herein, a person's failure to appear in person or by attorney on the day and at
the time set for hearing in a contested case shall entitle the Board to revoke
the person's license.
