1. (a) Information concerning licensure status for all licensees of the board is entered in a license database. The entry in the license database for a licensee who has been disciplined will be annotated that a disciplinary action has occurred. In responding to licensure status requests, the board will report whether a licensee has been disciplined by the board.

2. (b) The board, upon written request from a licensee, will remove such annotations from the database and its other records if the discipline imposed falls into any category listed in paragraphs (1) - (6) of this subsection. Licensees having more than one disciplinary action do not qualify for removal of the annotations.

   1. (1) Disciplinary action in which a written reprimand or administrative penalty was issued:

      1. (A) the effective date of the board order is at least three years past;
      2. (B) the licensee has had no subsequent disciplinary action;
      3. (C) the licensee has no disciplinary proceeding pending;
      4. (D) the licensee currently is not under investigation by the board; and
      5. (E) the order did not involve action based upon either sexual misconduct, fraud, or conviction of a criminal act.

   2. (2) Disciplinary action in which a "suspension, all probated" order was issued:

      1. (A) the effective date of the board order is at least seven years past;
      2. (B) the order did not involve action based upon either sexual misconduct, fraud or conviction of a criminal act;
      3. (C) the licensee has had no subsequent disciplinary action;
      4. (D) the licensee has no disciplinary proceeding pending; and
      5. (E) the licensee currently is not under investigation by the board.

   3. (3) Disciplinary action in which an administrative penalty or written reprimand was imposed against a facility for operating a facility without a facility license or with an expired license:

      1. (A) the effective date of the board order is at least one year past;
      2. (B) the facility has had no subsequent disciplinary action for the same violation;
      3. (C) the facility has no disciplinary proceeding pending; and
      4. (D) the facility currently is not under investigation by the board.

   4. (4) Disciplinary action in which an administrative penalty or written reprimand was imposed against a licensee for practicing with an expired license:

      1. (A) the effective date of the board order is at least three years past;
      2. (B) the licensee has had no subsequent disciplinary action for the same violation;
      3. (C) the licensee has no disciplinary proceeding pending; and
      4. (D) the licensee currently is not under investigation by the board.

   5. (5) Disciplinary action in which a suspension order (partially or not probated) was issued:

      1. (A) the effective date of the board order is at least ten years past;
      2. (B) the order did not involve action based upon either sexual misconduct, fraud or conviction of a criminal act;
      3. (C) the licensee has had no subsequent disciplinary action;
      4. (D) the licensee has no disciplinary proceeding pending; and
      5. (E) the licensee currently is not under investigation by the board.

   6. (6) Disciplinary action in which an administrative penalty and a written reprimand were imposed against a licensee:

      1. (A) the effective date of the board order is at least five years past;
      2. (B) the licensee has had no subsequent disciplinary action;
      3. (C) the licensee has no disciplinary proceeding pending;
      4. (D) the licensee currently is not under investigation by the board; and
      5. (E) the order did not involve action based upon either sexual misconduct, fraud, or conviction of a criminal act.
3. (c) The enforcement committee shall review a request and may ask for additional information from the licensee to evaluate the request.
4. (d) Upon a determination by the enforcement committee that the licensee meets all requirements of this section, the committee shall recommend that the board either grant or deny the request. The committee shall provide its reasons to the board for the recommendation.
5. (e) Should the board grant the request, the annotation of disciplinary action for a licensee and other files relating to that disciplinary action will be removed from the board's records pursuant to the board's records retention schedule.
6. (f) The board will notify the licensee in writing of its decision within a reasonable period of time.
7. (g) The board may remove from its records after three years from the date of closure any complaint which did not result in disciplinary action by the board as provided by the board's records retention schedule.
8. (h) The removal of disciplinary records under this section is within the sole discretion of the board. Its decision is final and is not subject to judicial review.

Source Note:The provisions of this §79.3 adopted to be effective January 29, 2015, 40 TexReg 379; transferred effective November 1, 2018, as published in the Texas Register October 19, 2018, 43 TexReg 6963.