Section 213.33 - Factors Considered for Imposition of Penalties/Sanctions(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.(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: (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.22 Tex. Admin. Code § 213.33
The provisions of this §213.33 adopted to be effective August 15, 2002, 27 TexReg 710; amended to be effective March 14, 2007, 32 TexReg 1304; amended to be effective October 10, 2007, 32 TexReg 7058; amended to be effective July 2, 2008, 33 TexReg 5007; amended to be effective February 16, 2010, 35 TexReg 1208; amended to be effective April 18, 2011, 36 TexReg 2395; amended to be effective July 16, 2012, 37 TexReg 5272; amended to be effective July 11, 2013, 38 TexReg 4348; Amended by Texas Register, Volume 40, Number 43, October 23, 2015, TexReg 7424, eff. 10/29/2015; Amended by Texas Register, Volume 44, Number 15, April 12, 2019, TexReg 1864, eff. 4/21/2019; Amended by Texas Register, Volume 46, Number 47, November 19, 2021, TexReg 7877, eff. 11/23/2021