Earning a professional or occupational license requires substantial time and training. Once you have earned that license, you are subject to various rules and laws that govern your profession. When a violation occurs, the potential sanctions of a complaint and disciplinary proceedings against your license can be severe. The rules governing most professions contain various aggravating and mitigating factors that can affect the sanctions you can receive in disciplinary proceedings. A professional license defense attorney can help you fight back against the allegations you are facing and work to minimize any sanctions that you might receive by using applicable mitigating factors.
Aggravating and Mitigating Factors in General
Aggravating and mitigating factors are generally factors that a licensing board can or may consider that might alter a professional’s sanction in a disciplinary case. The rules governing most professions have some degree of guidelines or presumptive sanctions for certain types of violations. However, licensing boards or administrative law judges often may deviate from guideline or advisory sanctions for a particular violation based on aggravating or mitigating factors.
Aggravating factors are factual circumstances that may worsen a licensee’s situation and result in a harsher sanction than a licensee might normally receive for a particular violation. Conversely, mitigating factors are factual circumstances that tend to improve a licensee’s situation and may cause a licensee to receive a more lenient sanction than a licensee might normally receive in a similar situation.
Texas Department of Licensing & Regulation – Factors to Be Considered
The Texas Department of Licensing & Regulation (TDLR) licenses and regulates numerous licensed professions. Each profession is subject to an individual enforcement plan that typically provides for certain sanctions that licensees can expect to receive if they commit certain violations of the laws or rules that govern their professions. However, TDLR may sometimes deviate from those presumptive sanctions as needed. In determining the appropriate sanction and/or amount of administrative penalty, TDLR must consider various aggravating and mitigating factors, including the following:
- The severity or seriousness of the violation;
- Whether the violation was willful or intentional;
- Whether the licensee acted in good faith to avoid or mitigate the violation or to correct the violation after it became apparent;
- Whether the licensee has engaged in similar violations in the past;
- The level of penalty or sanction necessary to deter future violations; or
- Any other matter that justice may require.
The Texas Medical Board – Aggravation and Mitigation
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22 Tex. Admin. Code §190.15(a) sets forth the aggravating factors that “may warrant more severe or restrictive action” by the Texas Medical Board (TMB) in disciplinary proceedings. Board staff are burdened by presenting evidence on every aggravating factor they use to increase a sanction in a disciplinary case. The relevant aggravating factors include:
- Harm to one or more patients;
- The severity of patient harm;
- One or more violations that involve more than one patient;
- Economic harm to any individual or entity and the severity of such harm;
- Increased potential for harm to the public;
- Attempted concealment of the act constituting a violation;
- Intentional, premeditated, knowing, or grossly negligent act constituting a violation;
- Prior similar violations;
- Previous disciplinary action by the Board, any government agency, peer review organization, or health care entity;
- Violation of a board order; and
- Other relevant circumstances increasing the seriousness of the misconduct.
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22 Tex. Admin. Code §190.15(b) outlines the mitigating factors that could warrant less severe or restrictive action by the TMB, including the following:
- Self-reported and voluntary admissions of violation(s);
- Implementation of remedial measures to correct or mitigate harm from the violation(s);
- Acknowledgment of wrongdoing and willingness to cooperate with the Board, as evidenced by acceptance of an Agreed Order;
- Rehabilitative potential;
- Prior community service and present value to the community;
- Participation in a continuing medical education course described in §166.2(a)(6) of this title (relating to Continuing Medical Education) completed not more than two years before the start of the investigation if the Board is investigating the physician regarding the physician’s selection of clinical care for the treatment of tick-borne diseases;
- Other relevant circumstances reducing the seriousness of the misconduct; and
- Other relevant circumstances lessening responsibility for the misconduct.
The Texas Behavioral Health Executive Council – Aggravating and Mitigating Factors
The Texas Behavioral Health Executive Council (BHEC) licenses and regulates marriage and family therapists, professional counselors, psychologists, and social workers. As part of its regulatory duties, BHEC handles complaints against these professionals and initiates disciplinary proceedings as needed. Therefore, BHEC is in the position of determining sanctions if its investigation reveals that a licensee has violated a rule or law relating to their profession.
Under 22 Tex. Admin. Code §884.20, BHEC can consider certain aggravating factors that may increase the severity of unprofessional conduct, justifying the imposition of a more severe sanction. These factors include:
- Physical or emotional harm and the type and severity thereof;
- Economic harm to any individual or entity and the severity thereof;
- Increased potential for harm to the public;
- Attempted concealment of misconduct;
- Premeditated conduct;
- Intentional misconduct;
- Prior written warnings or written admonishments from any supervisor, governmental agency, or official regarding statutes or regulations pertaining to the licensee’s practice;
- Prior misconduct of a similar or related nature;
- Disciplinary history;
- Likelihood of future misconduct of a similar nature;
- Violation of a Council order;
- Failure to implement remedial measures to correct or alleviate harm arising from the misconduct;
- Lack of rehabilitative effort or potential; and
- Improper or inappropriate motive.
Likewise, BHEC can consider mitigating factors that may decrease the severity of unprofessional conduct and, by extension, the severity of the sanction received. These factors include:
- Acceptance of responsibility;
- Self-reporting of unprofessional conduct;
- Implementation of remedial measures to correct or mitigate harm arising from the unprofessional conduct;
- Good-faith motive;
- Rehabilitative efforts or potential; and
- Prior community service.
We Are Here to Defend Your Rights
Maintaining and defending your professional license during disciplinary proceedings can be a stressful, challenging, and lengthy process. The guidance of an experienced professional license defense lawyer can make all the difference in the outcome of your disciplinary proceedings. With a strong legal advocate on your side, you can put yourself in a better position to handle your situation. Contact Bertolino LLP at (512) 515-9518 or visit us online.
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