1. (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.
2. (b) The Disciplinary Matrix is as follows:
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3. (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 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 Nursing Practice Act (NPA) and Board rules:

   1. (1) evidence of actual or potential harm to patients, clients, or the public;
   2. (2) evidence of a lack of truthfulness or trustworthiness;
   3. (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. (4) evidence of practice history;
   5. (5) evidence of present fitness to practice;
   6. (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. (7) the length of time the person has practiced;
   8. (8) the actual damages, physical, economic, or otherwise, resulting from the violation;
   9. (9) the deterrent effect of the penalty imposed;
   10. (10) attempts by the licensee to correct or stop the violation;
   11. (11) any mitigating or aggravating circumstances, including those specified in the Disciplinary Matrix;
   12. (12) the extent to which system dynamics in the practice setting contributed to the problem;
   13. (13) whether the person is being disciplined for multiple violations of the NPA or its derivative rules and orders;
   14. (14) the seriousness of the violation;
   15. (15) the threat to public safety;
   16. (16) evidence of good professional character as set forth and required by §213.27 of this chapter (relating to Good Professional Character); and
   17. (17) any other matter that justice may require.
4. (d) Each specific act or instance of conduct may be treated as a separate violation.

5. (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. (1) Denial of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit;

   2. (2) Approval of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit, with reasonable probationary stipulations as a condition of issuance, renewal, or reinstatement of the license or temporary permit. Additionally, the Board may determine, in accordance with §301.468 of the NPA, that an order denying a license application, license renewal, license reinstatement, or temporary permit be probated. Reasonable probationary stipulations may include, but are not limited to:

      1. (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 of the license or temporary permit;
      2. (B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
      3. (C) participate in a program of education or counseling prescribed by the Board;
      4. (D) limit specific nursing activities and/or periodic Board review;
      5. (E) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board;
      6. (F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
      7. (G) perform public service which the Board considers appropriate;

   3. (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:

      1. (A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
      2. (B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
      3. (C) participate in a program of education or counseling prescribed by the Board;
      4. (D) limit specific nursing activities and/or periodic Board review;
      5. (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;
      6. (F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
      7. (G) perform public service which the Board considers appropriate;

   4. (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:

      1. (A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
      2. (B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
      3. (C) participate in a program of education or counseling prescribed by the Board;
      4. (D) limit specific nursing activities and/or periodic Board review;
      5. (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;
      6. (F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
      7. (G) perform public service which the Board considers appropriate;
   5. (5) Limitation or restriction of the person's license, including limits on specific nursing activities or periodic Board review;

   6. (6) Suspension of the person's license. 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:

      1. (A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
      2. (B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
      3. (C) participate in a program of education or counseling prescribed by the Board;
      4. (D) limit specific nursing activities and/or periodic Board review;
      5. (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;
      6. (F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
      7. (G) perform public service which the Board considers appropriate;
   7. (7) Remit payment of the administrative penalty, fine, or assessment of hearing costs;
   8. (8) Acceptance of a Voluntary Surrender of a nurse's license(s);
   9. (9) Revocation of the person's license;
   10. (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. (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. (12) Assessment of costs as authorized by the Occupations Code §301.461 and the Government Code §2001.177; or
   13. (13) Require successful completion of a Board approved peer assistance program.
6. (f) Every disciplinary 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.

7. (g) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Board and SOAH when determining the appropriate penalty/sanction in disciplinary and eligibility matters:

   1. (1) Disciplinary Sanctions for Fraud, Theft, and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
   2. (2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
   3. (3) Disciplinary 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.
   4. (4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
   5. (5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
8. (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.
9. (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.
10. (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.

11. (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, or abuse of drugs or alcohol, the Board may require an evaluation that meets the following standards:

    1. (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. (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. (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.

12. (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. (1) The Board may request an evaluation conducted by a Board-approved forensic psychologist, forensic psychiatrist, or advanced practice registered nurse who:

       1. (A) evaluates the behavior in question or the prior criminal history of the person;

       2. (B) seeks to predict:

          1. (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
          2. (ii) the continuing danger, if any, that the person poses to the community;
       3. (C) is familiar with the duties appropriate to the nursing profession;
       4. (D) conducts the evaluation pursuant to professionally recognized standards and methods; and
       5. (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. (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. (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.

Source Note: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.