The Texas Board of Nursing (BON) investigates misconduct allegations by nurses and takes necessary enforcement action, which may include disciplinary proceedings and eventual sanctions. Findings of misconduct can lead to severe consequences. However, the BON has developed some alternatives to traditional sanctions for nurses in specific situations that may be available to you. Having a nursing license defense attorney on your side can ensure that you are aware of the full array of options that you can access to resolve your case.
Corrective Action Proceedings
BON utilizes corrective action proceedings in appropriate circumstances as an alternative to traditional disciplinary proceedings for nurses. 22 Tex. Admin. Code §213.32 states that corrective action does not constitute a disciplinary action against a nurse under the Texas Occupations Code. As a result, corrective action proceedings are confidential, and records are not available to the public.
The Executive Director of the BON has the sole discretion to offer an agreed corrective action to a nurse. This remedy is not available as part of a contested case proceeding but only as part of an agreed settlement of a disciplinary complaint.
Corrective action is only available for a single violation that equates to a sanction at or below a remedial education order level and for nurses with no prior disciplinary history. Under §213.32, corrective action is appropriate for the first occurrence of any of the following violations by nurses:
- Practice on a delinquent license for more than six months but less than one year;
- Failure to comply with continuing competency requirements;
- Failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible;
- Failure to provide employers, potential employers, or the BON with complete and accurate answers to questions on subject matters including, but not limited to, employment history, licensure history, and criminal history;
- Failure to comply with BON requirements for change of name or address;
- Failure to develop, maintain, and implement a peer review plan according to statutory peer review requirements;
- Failure of an advanced practice registered nurse (APRN) to register for prescriptive authority in an additional role and population focus area, where the APRN otherwise meets all requirements for prescriptive authority; and
- Other violations of the Nursing Practice Act (NPA) and/or BON rules that are appropriate for resolution at the sanction level of Remedial Education, Remedial Education with a Fine, or a Fine, per the Board’s Disciplinary Matrix.
If the BON also imposes a fine as part of corrective action proceedings, the fine shall be $500.
Deferred Discipline Orders
Although a deferred discipline order is a form of discipline, it is an alternative to the traditional sanctions that BON typically uses in disciplinary proceedings. As a result, records of deferred discipline orders are available to the public for at least three years and until the nurse has completed all its requirements. At that point, a deferred discipline order becomes confidential under state law but not federal law.
As with corrective action proceedings, deferred discipline orders are only available at the discretion of the BON Executive Director upon settlement by agreement and not following a contested case proceeding. 22 Tex. Admin. Code §213.34 outlines when the BON may impose a deferred discipline order, which includes the following conditions:
- Individuals must have no other disciplinary history with the BON or another licensing board or disciplinary authority in another jurisdiction or under federal law;
- The violation(s) of the NPA and/or BON rules are appropriate for resolution at the sanction level 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
- The violation(s) of the NPA and/or BON rules were pending with the BON on or after September 1, 2009.
Any alleged violation of the NPA and/or BON rules that involves sexual misconduct, criminal conduct, intentional acts, falsification, deception, or substance use disorder is ineligible for deferred discipline. Furthermore, individuals who file a petition for a declaratory order of eligibility for licensure or practice nursing on a nursing licensure compact privilege are ineligible for deferred discipline.
Suppose a nurse fails to comply with a condition required by a deferred disciplinary order or becomes subject to another complaint filed against them while subject to the deferred disciplinary order. In that case, the BON will stay the dismissal of the original complaint until the subsequent complaint can be resolved. If the BON finds that the subsequent complaint should be resolved through disciplinary action, the BON will not dismiss the original complaint and may treat it as prior discipline in determining the appropriate disciplinary sanction.
Knowledge, Skills, Training, Assessment, and Research (KSTAR)
22 Tex. Admin. Code §213.35 authorizes the BON to create and implement a targeted assessment and remediation pilot program. The program aims to target deficiencies in nurse practice and provide effective remediation instead of discipline. Under this code section, the BON initially developed the Knowledge, Skills, Training, Assessment, and Research (KSTAR) program as a pilot program. KSTAR Nursing became an official alternative to traditional disciplinary sanctions approved by the BON in 2017.
Participation in the KSTAR program is at the discretion of the Executive Director of the BON. It is only available as part of an agreed settlement that occurs before the initiation of contested case proceedings at the State Office of Administrative Hearings. More specifically, supervision by the KSTAR program may be available instead of traditional supervisory stipulations if the stipulations are designed to address any or all the following issues:
- Practice deficit;
- Knowledge deficit; or
- Lack of situational awareness.
Eligibility for the KSTAR program closely mirrors eligibility for deferred discipline. The nurse must have no prior disciplinary history, and the violation(s) must be at or below the level that would result in a sanction of warning with stipulations or lower. Participation in the KSTAR program is also unavailable for cases involving certain types of misconduct, similar to those excluded from deferred discipline.
KSTAR participation does constitute disciplinary action and may be used as a prior disciplinary action in considering sanctions for future violations. An agreed board order involving KSTAR participation is also available to the public.
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You can count on the experienced nursing license defense lawyers at Bertolino LLP, to defend you when you receive notice that BON is investigating or bringing disciplinary action against you. We will investigate the circumstances that led to your disciplinary proceedings and devise the best strategy for your case. Together, we will work to clear your name and resolve your situation. Call us at (512) 515-9518 or contact us online.