Texas Register, Volume 35, Number 21, Pages 3905-4274, May 21, 2010 Page: 3,947
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tice Act and Board rules. If the individual successfully completes
all of the conditions of the deferred disciplinary action, SB 1415
authorizes the Board to dismiss the originating complaint filed
against the individual. Second, SB 1415 prohibits the pilot pro-
gram from including any disciplinary case that is serious enough
to warrant resolution through the issuance of a reprimand or the
denial, suspension, or revocation of an individual's nursing li-
cense. The Board has developed and adopted a range of dis-
ciplinary actions that may be imposed against an individual for
violations of the Nursing Practice Act and Board rules. These
disciplinary actions range from less serious actions, such as the
issuance of a remedial education order, to more serious actions,
such as the issuance of a reprimand or the suspension or revo-
cation of an individual's nursing license. SB 1415 limits the types
of disciplinary cases that may be included in the pilot program to
those in which the Board proposes to issue a disciplinary action
that is less serious than a reprimand. Such disciplinary actions
include the issuance of a fine, remedial education, remedial ed-
ucation with a fine, a warning, a warning with a fine, a warning
with stipulations, or a warning with stipulations and a fine. These
disciplinary actions are less serious in nature than those result-
ing in the issuance of a reprimand or the suspension, revocation,
or denial of a nursing license. Further, the Board utilizes these
types of disciplinary actions to resolve violations of the Nursing
Practice Act and Board rules that involve a relatively low risk of
harm to the public. Third, SB 1415 makes clear that a deferred
disciplinary action under the pilot program is not confidential until
such time as an individual completes all of the conditions of the
deferred disciplinary action and the originating complaint filed
against the individual is dismissed by the Board. At that time,
the deferred disciplinary action becomes confidential by law, to
the same extent that a complaint is confidential under the Oc-
cupations Code 301.466. Pursuant to 301.466, a complaint is
confidential and generally not subject to public disclosure, except
that a complaint may be disclosed to: (i) a person involved with
the Board in a disciplinary action against a nurse; (ii) a nursing
licensing or disciplinary board in another jurisdiction; (iii) a peer
assistance program approved by the Board under the Health and
Safety Code Chapter 467; (iv) a law enforcement agency; and (v)
a person engaged in bona fide research, if all information identi-
fying a specific individual has been deleted from the complaint.
Fourth, SB 1415 authorizes the Board to treat a deferred disci-
plinary action under the pilot program as prior disciplinary history
if an individual commits a subsequent violation of the Nursing
Practice Act and Board rules and is subject to Board discipline.
Finally, SB 14 requires the Board to appoint an advisory com-
mittee to assist the Board in overseeing the pilot program and its
evaluation.
Feasibility
SB 1415 requires the Board to determine the feasibility of con-
ducting a deferred disciplinary action pilot program no later than
February 1, 2010. The Board reviewed the requirements of SB
1415 at its October, 2009, and January, 2010, meetings. At that
time, the Board identified several factors that were relevant to its
determination of the feasibility of a pilot program under SB 1415.
First, the Board reviewed the results of a nationwide survey of
other state boards of nursing. The survey was conducted to
determine if any other state nursing board had implemented a
program similar to the pilot program contemplated by SB 1415.
Nine other state boards responded to the survey, including
Kentucky, Ohio, North Carolina, Massachusetts, Minnesota,
Mississippi, Vermont, Louisiana, and North Dakota. Mass-
achusetts also provided additional information to the Boardregarding 26 other state boards of nursing that had responded
to a similar survey conducted by Massachusetts in 2006.
These states included Alabama, Arizona, Arkansas, California,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa,
Kansas, Maine, Missouri, Montana, Nevada, New Hampshire,
New Jersey, New York, Oklahoma, South Dakota, Tennessee,
Utah, West Virginia, Wyoming, and Washington, D.C. While
several states reported the implementation of expungement
programs in their states, no other state nursing board reported
the implementation of a deferred disciplinary action program.
SB 1415 does not require the expungement of a deferred
disciplinary action under the pilot program. However, SB 1415
does address the confidentiality of a deferred disciplinary action
once an individual successfully completes the terms of the
deferred disciplinary action. As such, the Board determined that
it was necessary to review the expungement programs of the
responding state boards.
In reviewing the expungement programs of other states, the
Board identified the following commonalities: (i) the types of
orders that were eligible for expungement were limited, either
by the seriousness of the violation or the specific type of vio-
lation; (ii) generally, disciplinary orders could not be expunged
until a specified period of time had passed; (iii) the terms of a
disciplinary order must have been fully completed prior to the
expungement of the order; and (iv) no additional disciplinary
history could exist prior to the expungement of a disciplinary
order. The Board also noted that the majority of state nursing
boards responding to the survey reported having no statutory
authorization to expunge final disciplinary actions.
The Board also considered the mandatory reporting require-
ments of the Nurse Licensure Compact (Compact), authorized
under the Occupations Code Chapter 304, and the rules regard-
ing membership of the Compact, as set forth in Chapter 220 of
this title (relating to Nurse Licensure Compact), in conjunction
with the confidentiality requirements of SB 1415. Texas is a
member (party state) of the Compact. The Compact was formed
to facilitate cooperation among state nursing boards in the areas
of nurse regulation, investigation, and disciplinary action. As
a member of the Compact, the Board is required to promptly
report any action against an individual's nursing license to the
National Council of State Boards of Nursing (NCSBN). Party
states utilize this investigatory and disciplinary information to
make decisions about the licensure status of individuals in
their states. While party states are required to timely report
such information to NCSBN, the Compact recognizes state
expungement statutes and permits information subject to such
statutes to be removed from the database. SB 1415 does not
require the expungement of deferred disciplinary actions. Even
after a deferred disciplinary action becomes confidential under
the provisions of SB 1415, the Board is authorized to share
information about the deferred disciplinary action with other
nursing licensing or disciplinary boards, in accordance with the
provisions of 301.466. The Board carefully considered the
potential complications associated with doing so, however. For
example, the Board determined that if it continued to share infor-
mation concerning a deferred disciplinary action with other state
boards of nursing through the NCSBN database, it might not be
able to fully control the dissemination of the information beyond
the NCSBN database. The Board did not find that such a risk,
however, would make the pilot program infeasible. Rather, after
further consultation with NCSBN, the Board determined that it
would be possible to continue to share information with other
state boards of nursing while simultaneously safeguarding thePROPOSED RULES May 21, 2010 35 TexReg 3947
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Texas. Secretary of State. Texas Register, Volume 35, Number 21, Pages 3905-4274, May 21, 2010, periodical, May 21, 2010; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101187/m1/42/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.