SECTION 213.34. Deferred Discipline

(a) Deferred discipline may be imposed by the Board as specified in this rule.

(b) The opportunity to enter into a deferred disciplinary order is at the sole discretion of the Executive Director as a condition of settlement by agreement and is not available as a result of a contested case proceeding conducted pursuant to the Government Code Chapter 2001.

(c) Deferred discipline will be available for:

(1) individuals with no prior disciplinary history with the Board or any other licensing board and/or disciplinary authority in another jurisdiction or under federal law;

(2) 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; and

(3) violations of the Nursing Practice Act and/or Board rules that were pending with the Board on September 1, 2009, or after.

(d) Violations of the Nursing Practice Act and/or Board rules involving sexual misconduct, criminal conduct, intentional acts, falsification, deception, or substance use disorder will not be eligible for resolution through deferred discipline.

(e) Deferred discipline will not be available to:

(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) an individual whose application under §217.2 of this title (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 of this title (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) an individual who is practicing nursing in Texas on a nurse licensure compact privilege.

(f) A deferred disciplinary order will be available to the public for a minimum of three years and until such time as an individual successfully completes all of the conditions required by the deferred disciplinary order and the originating complaint is dismissed by the Board. After such time, the deferred disciplinary order will become confidential to the same extent that a complaint is confidential under the Occupations Code §301.466

(g) If an individual fails to comply with a condition 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 Chapter 301, Subchapter J, the Board will not dismiss the originating complaint, and the Board may treat the deferred disciplinary order as prior discipline when considering the imposition of a disciplinary sanction.

Source Note: The provisions of this §213.34 adopted to be effective July 12, 2010, 35 TexReg 6077; amended to be effective July 30, 2014, 39 TexReg 5753; amended to be effective July 12, 2017, 42 TexReg 3485