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Texas Medical Board
Disciplinary Guidelines
Chapter 190
Disciplinary Guidelines
Subchapter A, General Provisions
§§190.1-190.2
190.1. Purpose. This chapter is promulgated to:
(1) promote consistency in the exercise of sound discretion by board members in
licensure and disciplinary matters;
(2) provide guidance for board members for the resolution of potentially contested
matters; and
(3) provide guidance as to the types of conduct that constitute violations of the Medical
Practice Act (the "Act") or board rules.
190.2. Board's Role. The board shall render the final decision in a contested case and has the
responsibility to assess sanctions against licensees who are found to have violated the Act. The board
welcomes recommendations of administrative law judges as to the sanctions to be imposed, but the
board is not bound by such recommendations. A sanction should be consistent with sanctions imposed in
other similar cases and should reflect the board's determination of the seriousness of the violation and
the sanction required to deter future violations. A determination of the appropriate sanction is reserved
to the board. The appropriate sanction is not a proper finding of fact or conclusion of law. This chapter
shall be construed and applied so as to preserve board member discretion in the imposition of sanctions
and remedial measures pursuant to the Act's provisions related to methods of discipline and
administrative penalties. This chapter shall be further construed and applied so as to be consistent with
the Act, and shall be limited to the extent as otherwise proscribed by statute and board rule.
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Disciplinary Guidelines
Subchapter B, Violation Guidelines
§190.8
190.8. Violation Guidelines. When substantiated by credible evidence, the following acts, practices,
and conduct are considered to be violations of the Act. The following shall not be considered an
exhaustive or exclusive listing.
(1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an
acceptable professional manner consistent with public health and welfare within the meaning of the Act
includes, but is not limited to:
(A) failure to treat a patient according to the generally accepted standard of care;
(B) negligence in performing medical services;
(C) failure to use proper diligence in one's professional practice;
(D) failure to safeguard against potential complications;
(E) improper utilization review;
(F) failure to timely respond in person when on-call or when requested by
emergency room or hospital staff;
(G) failure to disclose reasonably foreseeable side effects of a procedure or
treatment;
(H) failure to disclose reasonable alternative treatments to a proposed procedure
or treatment;
(I) failure to obtain informed consent from the patient or other person authorized
by law to consent to treatment on the patient's behalf before performing tests, treatments, or procedures;
(J) termination of patient care without providing reasonable notice to the patient;
(K) prescription or administration of a drug in a manner that is not in compliance
with Chapter 200 of this title (relating to Standards for Physicians Practicing Complementary and
Alternative Medicine) or, that is either not approved by the Food and Drug Administration (FDA) for
use in human beings or does not meet standards for off-label use, unless an exemption has otherwise
been obtained from the FDA;
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(L) prescription of any dangerous drug or controlled substance without first
establishing a proper professional relationship with the patient.
(i) A proper relationship, at a minimum requires:
(I) establishing that the person requesting the medication is in fact
who the person claims to be;
(II) establishing a diagnosis through the use of acceptable medical
practices such as patient history, mental status examination, physical examination, and appropriate
diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is inadequate;
(III) discussing with the patient the diagnosis and the evidence for
it, the risks and benefits of various treatment options; and
(IV) ensuring the availability of the licensee or coverage of the
patient for appropriate follow-up care.
(ii) A proper professional relationship is also considered to exist between
a patient certified as having a terminal illness and who is enrolled in a hospice program, or another
similar formal program which meets the requirements of subclauses (I) through (IV) of this clause, and
the physician supporting the program. To have a terminal condition for the purposes of this rule, the
patient must be certified as having a terminal illness under the requirements of 40 TAC §97.403 and 42
CFR 418.22.
(M) inappropriate prescription of dangerous drugs or controlled substances to
oneself, family members, or others in which there is a close personal relationship that would include the
following:
(i) prescribing or administering dangerous drugs or controlled substances
without taking an adequate history, performing a proper physical examination, and creating and
maintaining adequate records; and
(ii) prescribing controlled substances in the absence of immediate need.
"Immediate need" shall be considered no more than 72 hours.
(2) Unprofessional and Dishonorable Conduct. Unprofessional and dishonorable conduct
that is likely to deceive, defraud, or injure the public within the meaning of the Act includes, but is not
limited to:
(A) violating a board order;
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(B) failing to comply with a board subpoena or request for information or action;
(C) providing false information to the board;
(D) failing to cooperate with board staff;
(E) engaging in sexual contact with a patient;
(F) engaging in sexually inappropriate behavior or comments directed towards a
patient;
(G) becoming financially or personally involved with a patient in an
inappropriate manner;
(H) referring a patient to a facility without disclosing the existence of the
licensee's ownership interest in the facility to the patient;
(I) using false, misleading, or deceptive advertising;
(J) providing medically unnecessary services to a patient or submitting a billing
statement to a patient or a third party payer that the licensee knew or should have known was improper.
"Improper" means the billing statement is false, fraudulent, misrepresents services provided, or
otherwise does not meet professional standards;
(K) behaving in an abusive or assaultive manner towards a patient or the patient's
family or representatives that interferes with patient care or could be reasonably expected to adversely
impact the quality of care rendered to a patient;
(L) failing to timely respond to communications from a patient;
(M) failing to complete the required amounts of CME;
(N) failing to maintain the confidentiality of a patient;
(O) failing to report suspected abuse of a patient by a third party, when the report
of that abuse is required by law;
(P) failing to report suspected abuse of a patient by a third party, when the report
of that abuse is required by law;
(Q) behaving in a disruptive manner toward licensees, hospital personnel, other
medical personnel, patients, family members or others that interferes with patient care or could be
reasonably expected to adversely impact the quality of care rendered to a patient;
(R) entering into any agreement whereby a licensee, peer review committee,
hospital, medical staff, or medical society is restricted in providing information to the board; and
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(S) commission of the following violations of federal and state laws whether or
not there is a complaint, indictment, or conviction:
(i) any felony;
(ii) any offense in which assault or battery, or the attempt of either is an
essential element;
(iii) any criminal violation of the Medical Practice Act or other statutes
regulating or pertaining to the practice of medicine;
(iv) any criminal violation of statutes regulating other professions in the
healing arts that the licensee is licensed in;
(v) any misdemeanor involving moral turpitude as defined by paragraph
(6) of this section;
(vi) bribery or corrupt influence;
(vii) burglary;
(viii) child molestation;
(ix) kidnapping or false imprisonment;
(x) obstruction of governmental operations;
(xi) public indecency; and
(xii) substance abuse or substance diversion.
(3) Disciplinary actions by another state board. A voluntary surrender of a license in lieu
of disciplinary action or while an investigation or disciplinary action is pending constitutes disciplinary
action within the meaning of the Act. The voluntary surrender shall be considered to be based on acts
that are alleged in a complaint or stated in the order of voluntary surrender, whether or not the licensee
has denied the facts involved.
(4) Disciplinary actions by peer groups. A voluntary relinquishment of privileges or a
failure to renew privileges with a hospital, medical staff, or medical association or society while
investigation or a disciplinary action is pending or is on appeal constitutes disciplinary action that is
appropriate and reasonably supported by evidence submitted to the board, within the meaning of section
164.051(a)(7) the Act.
(5) Repeated or recurring meritorious health care liability claims. It shall be presumed
that a claim is "meritorious," within the meaning of section 164.051(a)(8) of the Act, if there is a finding
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by a judge or jury that a licensee was negligent in the care of a patient or if there is a settlement of a
claim without the filing of a lawsuit or a settlement of a lawsuit against the licensee in the amount of
$50,000 or more. Claims are "repeated or recurring," within the meaning of section 164.051(a)(8) of the
Act, if there are three or more claims in any five-year period. The date of the claim shall be the date the
licensee or licensee's medical liability insurer is first notified of the claim, as reported to the board
pursuant to section 160.052 of the Act or otherwise.
(6) Discipline based on Criminal Conviction. The board is authorized by the following
separate statutes to take disciplinary action against a licensee based on a criminal conviction:
(A) Felonies.
(i) Section 164.051(a)(2)(B) of the Medical Practice Act, Section
204.303(a)(2) of the Physician Assistant Act, and Section 203.351(a)(7) of the Acupuncture Act,
(collectively, the “Licensing Acts”) authorize the board to take disciplinary action based on a conviction,
deferred adjudication, community supervision, or deferred disposition for any felony.
(ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend
a license on the grounds that a person has been convicted of a felony that directly relates to the duties
and responsibilities of the licensed occupation.
(iii) Because the provisions of the Licensing Acts may be based on either
conviction or a form of deferred adjudication, the board determines that the requirements of the Act are
stricter than the requirements of Chapter 53 and, therefore, the board is not required to comply with
Chapter 53, pursuant to Section 153.0045 of the Act.
(iv) Upon the initial conviction for any felony, the board shall suspend a
physician’s license, in accordance with Section 164.057(a)(1)(A), of the Act.
(v) Upon final conviction for any felony, the board shall revoke a
physician’s license, in accordance with Section 164.057(b) of the Act
(B) Misdemeanors.
(i) Section 164.051(a)(2)(B) of the Act authorizes the board to take
disciplinary action based on a conviction, deferred adjudication, community supervision, or deferred
disposition for any misdemeanor involving moral turpitude.
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(ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend
a license on the grounds that a person has been convicted of a misdemeanor that directly relates to the
duties and responsibilities of the licensed occupation.
(iii) For a misdemeanor involving moral turpitude, the provisions of
Section 164.051(a)(2) of the Medical Practice Act and Section 205.351(a)(7) of the Acupuncture Act,
may be based on either conviction or a form of deferred adjudication, and therefore the board determines
that the requirements of these licensing acts are stricter than the requirements of Chapter 53 and the
board is not required to comply with Chapter 53, pursuant to Section 153.0045 of the Act.
(iv) The Medical Practice Act and the Acupuncture Act do not authorize
disciplinary action based on conviction for a misdemeanor that does not involve moral turpitude. The
Physician Assistant Act does not authorize disciplinary action based on conviction for a misdemeanor.
Therefore these licensing acts are not stricter than the requirements of Chapter 53 in those situations. In
such situations, the conviction will be considered to directly relate to the practice of medicine if the act:
(I) arose out of the practice of medicine, as defined by the Act;
(II) arose out of the practice location of the physician;
(III) involves a patient or former patient;
(IV) involves any other health professional with whom the
physician has or has had a professional relationship;
(V) involves the prescribing, sale, distribution, or use of any
dangerous drug or controlled substance; or
(VI) involves the billing for or any financial arrangement
regarding any medical service;
(v) Misdemeanors involving moral turpitude. Misdemeanors involving
moral turpitude, within the meaning of the Act, are those that involve dishonesty, fraud, deceit,
misrepresentation, deliberate violence, or that reflect adversely on a licensee's honesty, trustworthiness,
or fitness to practice under the scope of the person's license.
(C) In accordance with §164.058 of the Act, the board shall suspend the license
of a licensee serving a prison term in a state or federal penitentiary during the term of the incarceration
regardless of the offense.
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Disciplinary Guidelines
Subchapter C, Sanction Guidelines
§§190.14-190.16
190.14. Disciplinary Sanction Guidelines. These disciplinary sanction guidelines are designed to
provide guidance in assessing sanctions for violations of the Medical Practice Act. The ultimate purpose
of disciplinary sanctions is to protect the public, deter future violations, offer opportunities for
rehabilitation if appropriate, punish violators, and deter others from violations. These guidelines are
intended to promote consistent sanctions for similar violations, facilitate timely resolution of cases, and
encourage settlements.
(1) The standard sanctions outlined below shall apply to cases involving a single
violation of the Act, and in which there are no aggravating or mitigating factors that apply. The board
may impose more restrictive sanctions when there are multiple violations of the Act. The board may
impose more or less severe or restrictive sanctions, based on any aggravating and/or mitigating factors
listed in §190.15 of this chapter (relating to Aggravating and Mitigating Factors) that are found to apply
in a particular case.
(2) The standard and minimum sanctions outlined below are applicable to first time
violators. In accordance with §164.001(g)(2) of the Act, the board shall consider revoking the person's
license if the person is a repeat offender.
(3) The standard and minimum sanctions outlined below are based on the conclusion
stated in Section 164.001(j) of the Act that a violation related directly to patient care is more serious
than one that involves only an administrative violation. An administrative violation may be handled
informally in accordance with Section 187.14.1 of these rules. Administrative violations may be more
or less serious, depending on the nature of the violation. Administrative violations that are considered
by the board to be more serious are designated as being an “aggravated administrative violation.”.
(4) The maximum sanction in all cases is revocation of the licensee's license, which may
be accompanied by an administrative penalty of up to $5,000 per violation. In accordance with §165.003
of the Act, each day the violation continues is a separate violation.
(4) Each statutory violation constitutes a separate offense, even if arising out of a single
act.
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(5) If the licensee acknowledges a violation and agrees to comply with terms and
conditions of remedial action through an agreed order, the standard sanctions may be reduced.
(6) The following standard sanctions shall apply to violations of the Act:
(A) Failure to timely provide copies of medical or billing records upon written
request is an administrative violation.
(i) Violation of:
(I) §159.006 - information furnished by licensee; and
(II) §164.052(a)(2) - violation of Board Rule, to wit: §165.2
(relating to Medical Record Release and Charges).
(ii) Standard Sanction:
(I) furnishing medical records requested;
(II) restitution; and
(III) administrative penalty of $1,000 per violation.
(B) Failure to timely comply with a board subpoena or request for information is
an administrative violation.
(i) Violation of §160.009 and board rule §179.4 (relating to Request for
Information and Records from Physicians).
(ii) Standard Sanction:
(I) public reprimand;
(II) compliance with the subpoena or request; and
(III) administrative penalty of $500 for each day of
noncompliance.
(C) Conviction or deferred adjudication for of a felony criminal offense may be
either an aggravated administrative violation or a patient care violation, depending on the facts
underlying the offense.
(i) Violation of §164.051(a)(2)(A) of the Medical Practice Act,
§204.303(a)(2) of the Physician Assistant Act, and §205.351(a)(7) of the Acupuncture Act.
(ii) In accordance with §164.057(a)(1)(A) of the Medical Practice Act, the
board shall suspend a licensee's license on proof that the licensee has been initially convicted of any
felony., or a misdemeanor under Chapter 22 (other than a misdemeanor punishable by fine only),
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§25.07, or §25.071 of the Texas Penal Code; a misdemeanor in which the defendant is required to
register as a sex offender under Chapter 62, Code of Criminal Procedure; an initial finding by the trier of
fact of guilt of a felony under Chapter 481 or 483 of the Health and Safety Code; or the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801 et. seq.)
(iii) In accordance with §164.057(b) of the Medical Practice Act, On final
conviction for a felony or misdemeanor described in this chapter, the board shall revoke the licensee's
license on final conviction for a felony.
(iv) A conviction of misdemeanor involving moral turpitude, for which
suspension or revocation is not mandated by the Medical Practice Act.
(I) If the conviction is related to the practice of medicine, the
standard sanction shall be revocation of the license.
(II) If the conviction is not related to the practice of medicine, the
standard sanction shall require:
(-a-) compliance with all restrictions, conditions and terms
imposed by any order of probation or deferred adjudication;
(-b-) public reprimand; and
(-c-) administrative penalty of $2,000 per violation.
(v) A conviction includes an adjudication of guilt or an order of deferred
adjudication.
(vi) In accordance with §164.058 of the Act, the board shall suspend the
license of a licensee serving a prison term in a state or federal penitentiary during the term of the
incarceration regardless of the offense.
(D) Conviction or deferred adjudication for a misdemeanor involving moral
turpitude may be either an aggravated administrative violation or a patient care violation, depending on
the facts underlying the offense.
(i) Violation of §164.051(a)(2)(B) of the Medical Practice Act and
§205.351(a)(7) of the Acupuncture Act.
(ii) Standard Sanction:
(I) If the offense is related to the duties and responsibilities of the
licensed occupation, the standard sanction shall be revocation of the license.
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(II) If the offense is not related to the duties and responsibilities of
the licensed occupation, the standard sanction shall require:
(-a-) Suspension of license, which may be probated after
90 days;
(-b-) compliance with all restrictions, conditions and terms
imposed by any order of probation or deferred adjudication;
(-c-) public reprimand; and
(-d-) administrative penalty of $2,000 per violation.
(E) Conviction of a misdemeanor that directly relates to the duties and
responsibilities of the licensed occupation may be either an administrative violation or a patient care
violation, depending on the facts underlying the offense.
(i) Violation of §53.021, Tex. Occ. Code.
(ii) Standard Sanction:
(I) If the offense involves patient care, the standard sanction shall
be revocation of the license.
(II) If the offense does not involve patient care and is an
administrative violation only, the standard sanction shall require:
(-a-) compliance with all restrictions, conditions and terms
imposed by any order of probation or deferred adjudication;
(-b-) public reprimand; and
(-c-) administrative penalty of $2,000 per violation.
(F) Conviction of Certain Misdemeanors may be either an administrative
violation or a patient care violation, depending on the facts underlying the offense.
(i) In accordance with §164.057(a)(1)(B), (C), (D), and (E) of the Medical
Practice Act, the board shall suspend a licensee's license on proof that the licensee has been initially
convicted any of the following misdemeanors:
(I) a misdemeanor under Chapter 22, Penal Code, other than a
misdemeanor punishable by fine only;
(II) a misdemeanor on conviction of which a defendant is required
to register as a sex offender under Chapter 62, Code of Criminal Procedure;
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(III) a misdemeanor under Section 25.07, Penal Code, or
(IV) a misdemeanor under Section 25.071, Penal Code.
(ii) In accordance with §164.057(b) of the Medical Practice Act, the board
shall revoke the licensee's license on final conviction of any of these misdemeanors.
(G)(D) Failure to obtain/document continuing medical education is an
administrative violation.
(i) Violation of §164.051(a)(3) or violation of board rule §166.2 (relating
to Continuing Medical Education).
(ii) Standard Sanction:
(I) directed CME; and
(II) administrative penalty of $1,000 per violation.
(H)(E) Impairment of ability to practice may be either an aggravated
administrative violation or a patient care violation, depending on the whether a violation of the standard
of care has resulted from the impairment.
(i) Within the meaning of §164.051(a)(4) - inability to practice medicine
with reasonable skill and safety to patients because of off illness, drunkenness, excessive use of drugs,
or a mental condition.
(ii) Standard Sanction: suspension of license until such time as the
licensee can demonstrate that the licensee is safe and competent to practice medicine.
(iii) Alternate Standard Sanction: probation of suspension for 10 5 years
under terms and conditions, including, but not limited to:
(I) drug testing;
(II) restrictions on practice;
(III) alcoholics anonymous/narcotics anonymous attendance;
(IV) psychiatric/psychological evaluation and treatment; and
(V) proficiency testing.
(iv) Chapter 180 of this title (relating to Rehabilitation Orders) provides
guidance on whether a licensee is eligible for and should be placed under a confidential rehabilitation
order.
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(I)(F) Failure to maintain adequate medical records may be either an
administrative violation or a patient care violation, depending on whether a patient was harmed because
of the failure.
(i) Violation of:
(I) §164.051(a)(6) - professional failure to practice medicine
consistent with the public health and welfare;
(II) §164.054 - additional requirements regarding drug records;
(III) §164.053(a)(2) - failure to keep complete and accurate
records of purchases and disposals of controlled substances and dangerous drugs, and
(IV) §164.051(a)(3) - violation of board rules, including:
(-a-) board rule §165.1(a) (relating to Medical Records) -
failure to maintain adequate medical records; and
(-b-) board rule §170.3 (relating to Authority of Physician
to Prescribe for the Treatment of Pain) - prescribing guidelines for the treatment of pain.
(ii) Standard Sanction: probation for 2 years under terms and conditions,
including, but not limited to:
(I) competency testing;
(II) directed CME;
(III) monitoring of practice; and
(IV) administrative penalty of $2,000 per violation.
(J)(G) Quality of Care is a patient care violation.
(i) Violations of:
(I) §164.051(a)(6) - failure to practice medicine in a professional
manner consistent with the public health and welfare; and
(II) §164.051(a)(8) - repeated and meritorious medical malpractice
claims.
(ii) Standard Sanction:
(I) The standard sanction, which shall apply in the case of a single
patient with no substantial patient harm and no other aggravating or mitigating circumstances, shall be
one or more of the following:
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(I) suspension of license for 3 years;
(II) suspension probated after 90 days under terms and conditions,
including, but not limited to:
(-a-) limiting the practice of the person, or excluding one
or more specified activities of medicine;
(-b-) proficiency testing;
(-c-) directed CME;
(-d-) monitoring of the practice; and
(-e-) public reprimand; and
(-f-)(-e-) administrative penalty of $3,000 per violation.
(II) Standard sanction in a case involving patient harm or other
aggravating factors shall be:
(a) suspension of license for 3 years;
(b) suspension may be probated after 90 days under terms
and conditions similar to those described in subsection (I), immediately preceding.
(K)(H) Discipline by peers may be either an administrative violation or a patient
care violation, depending on the facts underlying the disciplinary action.
(i) Within the meaning of §164.051(a)(7).
(ii) Standard Sanction: See the applicable standard sanction for the
violation of the Texas Medical Practice Act that most closely relates to the basis of the disciplinary
action by peers. In addition, the licensee shall comply with all restrictions, conditions and terms imposed
by the disciplinary action by peers.
(iii) Alternate Standard Sanction:
(I) public reprimand;
(II) comply with all restrictions, conditions and terms imposed by
the disciplinary action by peers; and
(III) administrative penalty of $1,000 per violation.
(L)(I) Disciplined by another state or military may be either an administrative
violation or a patient care violation, depending on the facts underlying the disciplinary action.
(i) Within the meaning of §164.051(a)(9).
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(ii) Standard Sanction: See the applicable standard sanction for the most
similar violation of the Act. In addition, the licensee shall comply with all restrictions, conditions and
terms imposed by the other state or military.
(iii) Alternate Standard Sanction:
(I) comply with all restrictions, conditions and terms imposed by
the other state or military; and
(II) administrative penalty of $1,000 per violation.
(iv) The standard sanction for a licensee whose license has been revoked
by another state or who has voluntarily surrendered his license while an investigation or disciplinary
action is pending shall be revocation of the license.
(M)(J) Improper prescribing, dispensing, or administering of drugs is a patient
care violation.
(i) Violation of:
(I) §164.053(a)(3) - prescribing or dispensing drugs to a drug
abuser;
(II) §164.053(a)(5) - prescribing or administering drugs in a non
therapeutic manner; and
(III) §164.053(a)(6) - prescribing or administering drugs in a
manner inconsistent with the public health and welfare.
(ii) Standard Sanction: The standard sanction, which shall apply in the
case of a single patient with no substantial patient harm and no other aggravating or mitigating
circumstances, shall be:
(I) suspension of license for 2 years.
(II) suspension probated after 60 days under terms and conditions,
including, but not limited to:
(-a-) restrictions on practice, including prescribing,
administering controlled substances and dangerous drugs;
(-b-) proficiency testing;
(-c-) directed CME; and
(-d-) administrative penalty of $2,000 per violation.
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(N)(K) Writing false or fictitious prescriptions is a patient care violation.
(i) Violation of §164.053(a)(4).
(ii) Standard Sanction:
(I) suspension of license for 4 years;
(II) suspension probated after 90 days under terms and conditions,
including, but not limited to:
(-a-) restrictions on practice including restrictions on
prescribing, administering controlled substances and dangerous drugs;
(-b-) proficiency testing;
(-c-) directed CME; and
(-d-) administrative penalty of $2,000 per violation.
(O)(L) Fraudulent, improper billing practices is an aggravated administrative
violation.
(i) Violation of §164.053(a)(7).
(ii) Standard Sanction:
(I) suspension of license for 3 years;
(II) suspension probated after 90 days under terms and conditions,
including, but not limited to:
(-a-) monitoring of practice, including billing practices;
(-b-) directed CME;
(-c-) restitution; and
(-d-) administrative penalty of $3,000 per violation.
(P)(M) Failing to adequately supervise subordinates and improper delegation is a
patient care violation.
(i) Violation of:
(I) §164.053(a)(8) and
(II) §164.053(a)(9).
(ii) Standard Sanction:
(I) suspension of license for 3 years;
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(II) suspension probated after 60 days under terms and conditions,
including, but not limited to:
(-a-) monitoring of practice;
(-b-) directed CME; and
(-c-) administrative penalty of $2,000 per violation.
(Q)(N) Failure to comply with the terms and conditions of a Board order may be
either an aggravated administrative violation or a patient care violation, depending on the facts
underlying the failure.
(i) Within the meaning of §164.103 - rescission of probation.
(ii) Standard Sanction:
(I) public reprimand;
(II) extension of the Board order by 6 months for each violation;
and
(III) administrative penalty of $2,000 per violation.
(iii) Unless the board finds that the facts warrant a less severe sanction,
the license of a person who violates a Board order to abstain from the consumption of alcohol and/or
drugs, as evidenced by a positive drug test or other proof, shall be revoked.
(R)(O) For any violation of the Act that is not specifically mentioned in this rule,
the board shall apply a sanction that generally follows the spirit and scheme of the sanctions stated in
subparagraphs (A)-(R) (A)-(N) of this paragraph.
190.15. Aggravating and Mitigating Factors.
(a) Aggravation. In any disciplinary action, the following may be considered as aggravating
factors that warrant more severe or restrictive action by the board. Board staff shall have the burden to
present evidence regarding any aggravating factors that may apply in the particular case. A final order
shall include a finding of fact on each applicable aggravating factor.
(1) harm to one or more patients;
(2) the severity of patient harm;
(3) one or more violations that involve more than one patient;
(4) economic harm to any individual or entity and the severity of such harm;
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(5) increased potential for harm to the public;
(6) attempted concealment of the act constituting a violation;
(7) intentional, premeditated, knowing, or grossly negligent act constituting a violation;
(8) prior similar violations;
(9) previous disciplinary action by the board, any government agency, peer review
organization, or health care entity;
(10) violation of a board order;
(11) other relevant circumstances increasing the seriousness of the misconduct.
(b) Mitigation. In any disciplinary action, the following may be considered as mitigating factors
that warrant less severe or restrictive action by the board. The licensee shall have the burden to present
evidence regarding any mitigating factors that may apply in the particular case. A final order shall
include a finding of fact on each applicable mitigating factor.
(1) self-reported and voluntary admissions of violation(s);
(2) implementation of remedial measures to correct or mitigate harm from the
violation(s);
(3) acknowledgment of wrongdoing and willingness to cooperate with the board, as
evidenced by acceptance of an Agreed Order;
(4) rehabilitative potential;
(5) prior community service and present value to the community;
(6) other relevant circumstances reducing the seriousness of the misconduct; and,
(7) other relevant circumstances lessening responsibility for the misconduct.
190.16. Administrative Penalties.
(a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each
day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including;
(A) whether it is an administrative violation, an aggravated administrative
violation, or a patient care violation;
(B) the nature, circumstances, extent, and gravity of any prohibited act; and
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Chapter 190 – Disciplinary Guidelines
(C)(B) the hazard or potential hazard created to the health, safety, or economic
welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation.
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