1. (a) This section implements the deferred disciplinary action pilot program authorized by the Occupations Code §301.1607. The pilot program will commence on February 1, 2011, and will conclude no later than January 1, 2014.
2. (b) The purpose of the pilot program is to evaluate the efficacy and effect of Board deferral of final disciplinary actions against individuals for violations of the Nursing Practice Act and/or Board rules.
3. (c) The opportunity to enter into a deferred disciplinary order under the pilot program is at the sole discretion of the Executive Director.

4. (d) A deferred disciplinary action under the pilot program will be available:

   1. (1) for individuals with no prior disciplinary history with the Board;
   2. (2) for violations of the Nursing Practice Act and/or Board rules that are proposed for resolution through the issuance of a Warning, a Warning with Stipulations, a Warning with Stipulations and a Fine, a Warning with a Fine, Remedial Education, Remedial Education with a Fine, or a Fine;
   3. (3) only as a condition of settlement by agreement prior to the initiation of proceedings before the State Office of Administrative Hearings;
   4. (4) only if the probationary stipulations outlined in the deferred disciplinary order are designed to address an individual's practice deficit, knowledge deficit, or lack of situational awareness; and
   5. (5) for violations of the Nursing Practice Act and/or Board rules that were pending with the Board on September 1, 2009, or after.
5. (e) Violations involving sexual misconduct, criminal conduct, intentional acts, falsification, deception, chemical dependency, or substance abuse will not be eligible for resolution through a deferred disciplinary action under the pilot program.

6. (f) A deferred disciplinary action under the pilot program will not be available to:

   1. (1) an individual who files a petition for declaratory order under §213.30 of this title (relating to Declaratory Order of Eligibility for Licensure);
   2. (2) an individual whose application under §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate From Nursing Education Programs Outside of United States' Jurisdiction), or §217.5 of this title (relating to Temporary License and Endorsement) is treated as a petition for declaratory order under §213.30 of this title; or
   3. (3) an individual who is practicing nursing in Texas on a nurse licensure compact privilege.
7. (g) A deferred disciplinary order will be available to the public for a minimum of five years and until such time as an individual successfully completes all of the probationary stipulations required by the deferred disciplinary order and the originating complaint is dismissed by the Board. After such time, the deferred disciplinary order will not be available to the public.
8. (h) If an individual fails to comply with a probationary stipulation required by a deferred disciplinary order or if a subsequent complaint is filed against an individual during the pendency of the deferred disciplinary order, the Board will stay the dismissal of the originating complaint pending the resolution of the subsequent complaint. If the subsequent complaint is proposed for resolution through a disciplinary action under the Occupations Code Subchapter J, the Board will not dismiss the originating complaint, and the Board may treat the deferred disciplinary action as prior disciplinary action when considering the imposition of a disciplinary sanction.
9. (i) The outcome and effectiveness of the pilot program will be evaluated by the Board on a regular basis.

Source Note:The provisions of this §213.34 adopted to be effective July 12, 2010, 35 TexReg 6077.