The following factors may be considered in determining the disciplinary sanctions imposed by the board if the factors are applicable to the factual situation alleged. The factors are not applicable in situations involving criminal actions (in which case §281.63 of this title (relating to Considerations for Criminal Offenses) applies).

1. (1) Aggravation. The following may be considered as aggravating factors so as to merit more severe or more restrictive action by the board:

   1. (A) patient harm and the severity of patient harm;
   2. (B) economic harm to any individual, entity, or the environment, and the severity of such harm;
   3. (C) increased potential for harm to the public;
   4. (D) attempted concealment of the conduct which serves as a basis for disciplinary action under the Act;
   5. (E) premeditated conduct which serves as a basis for disciplinary action under the Act;
   6. (F) intentional conduct which serves as a basis for disciplinary action under the Act;
   7. (G) motive for conduct which serves as a basis for disciplinary action under the Act;
   8. (H) prior conduct of a similar or related nature;
   9. (I) disciplinary actions taken by any regulatory agency of the federal government or any state;
   10. (J) prior written warnings or written admonishments from any government agency or official regarding statutes or regulations pertaining to the conduct which serves as a basis for disciplinary action under the Act;
   11. (K) violation of a board order;
   12. (L) failure to implement remedial measures to correct or mitigate harm from the conduct which serves as a basis for disciplinary action under the Act;
   13. (M) lack of rehabilitative potential or likelihood for future conduct of a similar nature;
   14. (N) relevant circumstances increasing the seriousness of the conduct which serves as a basis for disciplinary action under the Act; and
   15. (O) circumstances indicating intoxication due to ingestion of alcohol and/or drugs.

2. (2) Extenuation and Mitigation. The following may be considered as extenuating and mitigating factors so as to merit less severe or less restrictive action by the board:

   1. (A) absence of potential harm to the public;
   2. (B) self-reported and voluntary admissions of the conduct which serves as a basis for disciplinary action under the Act;
   3. (C) absence of premeditation to commit the conduct which serves as a basis for disciplinary action under the Act;
   4. (D) absence of intent to commit the conduct which serves as a basis for disciplinary action under the Act;
   5. (E) absence of prior conduct of a similar or related nature;
   6. (F) absence of disciplinary actions taken by any regulatory agency of the federal government or any state;
   7. (G) implementation of remedial measures to correct or mitigate harm from the conduct which serves as a basis for disciplinary action under the Act;
   8. (H) rehabilitative potential;
   9. (I) prior community service and present value to the community;
   10. (J) relevant circumstances reducing the seriousness of the conduct which serves as a basis for disciplinary action under the Act;
   11. (K) relevant circumstances lessening responsibility for the conduct which serves as a basis for disciplinary action under the Act; and
   12. (L) treatment and/or monitoring of an impairment.

Source Note:The provisions of this §281.62 adopted to be effective September 3, 2006, 31 TexReg 6722; amended to be effective March 25, 2007, 32 TexReg 1508; amended to be effective September 7, 2008, 33 TexReg 7218.