TITLE examining-boards

Part VIII. Texas Appraiser Licensing and Certification Board

Chapter 153. Provisions of the Texas Appraiser Licensing and Certification Act

22 TAC §153.9

The Texas Appraiser Licensing and Certification Board proposes an amendment to §153.9 relating to Applications. Specifically §153.9(b)(1) is being amended to revise the Application for Appraiser Certification or Licensing form to reorder a number of questions, to add questions regarding complaints or disciplinary actions pending against professional licenses, unpaid judgements, and default on Texas Guaranteed Student Loan Corporation (TGSLC) loans, and to clarify the wording for some instructions.

Renil C. Liner, Commissioner, Texas Appraiser Licensing and Certification Board, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local government.

Mr. Liner also has determined that for each year of the first five years the proposed amendment is in effect the public benefit anticipated as a result of enforcing the sections will be to increase efficiency of application processing, to clarify the application process and requirements, and to better determine applicant backgrounds for meeting licensure requirements. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted Renil C. Liner, Commissioner, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas, 78711-2188.

The amendment is proposed under the Powers and Duties of the Board, Texas Appraiser Licensing and Certification Act, §5 (Texas Civil Statutes, Article 6573a.2). Section 9, Licensing and Certification Requirements, Texas Civil Statutes, Article 6573a.2, is affected by the proposal.

§153.9.Applications.

(a)

(No change.)

(b)

The Texas Appraiser Licensing and Certification Board adopts by reference the following forms approved by the board and published and available from the board, P.O. Box 12188, Austin, Texas 78711-2188:

(1)

TALCB Form 1.5 [ 1.4 ], Application for Appraiser Certification or Licensing;

(2)-(9)

(No change.)

(c)-(f)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 14, 1998.

TRD-9818339

Renil C. Liner

Commissioner

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 465-3950


Part IX. Texas State Board of Medical Examiners

Chapter 163. Licensure

22 TAC §163.1

The Texas State Board of Medical Examiners proposes an amendment to §163.1, concerning definitions. The amendment will outline combinations of examinations that are acceptable for licensure.

Tony Cobos, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed.

Mr. Cobos also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be outlined combinations of examinations that are acceptable for licensure. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, §2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act.

The Medical Practice Act, Texas Civil Statutes, Article 4495b, §3.05 is affected by the proposed amendment.

§163.1. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicates otherwise.

(1)-(7)

(No change.)

(8)

Examinations accepted by the board for licensure by endorsement -

(A)-(G)

(No change.)

(H)

one of the following examination combinations, passed within three attempts with a score of 75 or better on each part, level, component, or step, all parts, levels, components, or steps must be passed within seven years:

(i)-(ii)

(No change.)

[ (iii)

NBME I and NBME II, plus USMLE 3;]

(iii)

[ (iv) ] NBME I or USMLE 1, plus NBME II or USMLE 2, plus NBME III or USMLE 3;

(iv)

[ (v) ] NBME I or USMLE 1, plus NBME II or USMLE 2, plus FLEX II;

(v)

NBOME I, plus NBOME II, plus FLEX II;

(vi)

(No change.)

(9)-(18)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 1998.

TRD-9818489

Bruce A. Levy, M.D., J.D.

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 305-7016


Part XXIX. Texas Board of Professional Land Surveying

Chapter 661. General Rules of Procedures and Practices

Subchapter C. Definitions of Terms

22 TAC §661.33

The Texas Board of Professional Land Surveying proposes new §661.33, concerning the easements and construction estimates.

The new section is being proposed to clarify which easements must be done by a registered professional land surveyor and will define a construction estimate as used in Article 5282c, §3A.

Sandy Smith, executive director, has determined that for the first five-year period the rule is in effect, there will be no fiscal implications for state or local government.

Ms. Smith also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the section will be the clarification of which easements must be done by a registered professional land surveyor and a defined construction estimate as used in Article 5282c, §3A. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Sandy Smith, Texas Board of Professional Land Surveying, 7701 North Lamar, Suite 400, Austin, Texas 78752.

The new rule is proposed under Texas Civil Statutes, Article 5282c, §9, which provides the Texas Board of Professional Land Surveying with the authority to make and enforce all reasonable and necessary rules, regulations and bylaws not inconsistent with the Texas Constitution, the laws of this state, and this Act.

No other statute, article, or code is affected by this proposal.

§661.33. Easements and Construction Estimates.

(a)

An easement legal description or plat depiction which is used in a real property conveyance or filed for recording in the real property records or plats records of this State must be prepared by a Registrant, except when:

(1)

the easement area can be clearly ascertained by the general public without use of a metes and bounds description of the easement;

(2)

monumentation is not placed on the ground; and

(3)

the easement does not bisect the tract (leaving non-easement areas on both sides of the easement strip).

(b)

An easement legal description or plat depiction meets the requirements of the exception to this rule when the easement;

(1)

is a blanket easement; or

(2)

is within a tract or lot depicted in a recorded subdivision plat, can be clearly defined and located without a metes and bounds survey, and is adjacent to a platted boundary line.

(c)

A "construction estimate", is used in §3A of the Act, means a depiction of a possible easement route for planning purposes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 1998.

TRD-9818490

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 452-9427


Chapter 663. Standards of Responsibility and Rules of Conduct

Subchapter B. Professional and Technical Standards

22 TAC §§663.13, 663.21, 663.23

The Texas Board of Professional Land Surveying proposes an amendment to §663.13 and new §663.21 and §663.23, concerning requirements for preparing descriptions for political subdivisions and the signing and sealing of services by professional land surveyors.

Section 663.13 and §663.21 are being proposed to provide the public with a better, more informative, surveying product. The minimum conditions require descriptions to be unambiguous and locatable on the ground.

Section 663.23 is being proposed to establish a regulation that will allow professional land surveyors to sign and seal documents, which are not within the definition of professional land surveying.

Sandy Smith, executive director, has determined that for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government.

Ms. Smith also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be a better, more informative, surveying product and an established regulation that will allow professional land surveyors to sign and seal documents, which are not within the definition of professional land surveying. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Sandy Smith, Texas Board of Professional Land Surveying, 7701 North Lamar, Suite 400, Austin, Texas 78752.

The amendment and new sections are proposed under Texas Civil Statutes, Article 5282c, §9, which provides the Texas Board of Professional Land Surveying with the authority to make and enforce all reasonable and necessary rules, regulations and bylaws not inconsistent with the Texas Constitution, the laws of this state, and this Act.

No other statute, article, or code is affected by this proposal.

§663.13. Introduction.

The Board establishes these minimum standards of practice to better serve the general public in regulating the practice of land surveying in Texas. All surveys, unless otherwise specifically exempted, performed by registered professional land surveyors in Texas shall meet or exceed the requirements of these standards. The Board considers any survey, the purpose of which is to delineate, segregate, separate, or partition any interest in real property of any kind, under these standards. [ To better serve the general public in regulating the practice of land surveying in Texas, these minimum standards of practice (standards) are established. All surveys performed by registered professional land surveyors in Texas shall adhere to these standards by meeting or exceeding the requirements hereof. ]

§663.21. Descriptions Prepared for Political Subdivisions.

A registrant or licensee may prepare, sign and seal a bounds description for any political subdivision of state or local government under the following minimum conditions listed in paragraphs (1)-(4) of this section.

(1)

The description must be unambiguous and locatable on the ground by ordinary surveying procedures.

(2)

Any record or physical monumentation called for in the description must be in place at the time the surveyor prepares the description and the surveyor must have personal knowledge of such monument sufficient to give a proper current description for the monument and its accessories.

(3)

The surveyor signing the work must have performed an on the ground survey to support any course and distance recited in the description.

(4)

Any document prepared under this rule shall bear a note as follows: This document was prepared under 22 TAC §663.21 and does not necessarily reflect the results of an on the ground survey.

§663.23. Signing and Sealing of Services.

Registered professional land surveyors may sign and seal services which are not within the definition of professional land surveying as defined in the Act, any such signed and sealed document will carry a statement, "this service, as provided, does not constitute professional land surveying as defined in the Act".

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 1998.

TRD-9818491

Sandy Smith

Executive Director

Texas Board of Professional Land Surveying

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 452-9427


Part XXXVIII. Texas Midwifery Board

Chapter 831. Midwifery

The Texas Midwifery Board (board), with the approval of the Texas Board of Health, proposes new §§831.11, 831.31, 831.101, and 831.161 concerning midwives. Specifically, the sections cover annual documentation; education; administration of oxygen; and complaint review.

The Texas Midwifery Board is authorized by the Texas Midwifery Act (the Act), Texas Civil Statutes, Article 4512i, §8A(b), to adopt rules concerning documentation and educational requirements for midwives, processing of complaints concerning midwives, and any additional rules necessary to implement any duty imposed by the Act, subject to the approval of the Texas Board of Health. Effective December 1, 1998, the Midwifery Program and the Midwifery Board were administratively transferred from the Texas Department of Health (department), Women's Health Division, to the Professional Licensing and Certification Division of the department. The rules are currently located in 25 Texas Administrative Code (TAC), and the department proposes the repeal of 25 TAC §§37.175, 37.178, and 37.180 in order that the new sections may be proposed by the Texas Midwifery Board, which will be listed as an independent board under 22 TAC. The repeal of 25 TAC §§37.175, 37.178, and 37.180 can be found in the January 1, 1999, issue of the Texas Register in the Proposed Rules section.

New §831.11 establishes procedures for documentation by reciprocity; prescribes conditions for denial, revocation, suspension or surrender of documentation; and establishes standards for documentation of persons with criminal convictions and for documentation after revocation, suspension or surrender. New §831.31 establishes procedures for approving, denying, or revoking approval of midwifery basic education and continuing education courses; establishes an approved comprehensive midwifery exam and procedures for approval, denial, or revocation of approval for other comprehensive exams; and establishes procedures for the investigation and disposition of complaints concerning currently approved courses or exams. New §831.101 establishes procedures for the intrapartum and postpartum administration of oxygen by midwives. New §831.161 establishes procedures for complaint investigation and disposition; categories of complaints; and disciplinary sanctions, including revocation of documentation and administrative penalties.

Bernie Underwood, C.P.A., Chief of Staff, Associateship for Health Care Quality and Standards, has determined that for the first five-year period the sections are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Ms. Underwood has also determined that for each of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the sections is standardization of and improvement in the quality of midwifery practice. There will be additional costs to small businesses. Facilities applying for approval of education programs will be assessed an application fee of $150 and a site visit fee prior to a decision by the Midwifery Board on course approval which has been increased from $300 to $400. Facilities or organizations applying for approval of comprehensive exams will be assessed an application fee of $150. There will be no anticipated impact on local employment.

Comments on the proposal may be submitted to Yvonne Feinleib, Midwifery Program Director, Professional Licensing and Certification Division, Texas Department of Health, 1100 West 49th Street, Austin, TX 78756-3199. Comments will be accepted for 30 days following the date of publication of this proposal in the Texas Register .

Subchapter B. Documentation

22 TAC §831.11

The new section is proposed under Texas Civil Statutes, Article 4512i, §8A, which authorizes the Midwifery Board to adopt rules, subject to the approval of the Texas Board of Health, necessary for the documentation and regulation of Texas midwives.

The new section affects Texas Civil Statutes, Article 4512i.

§831.11.Annual Documentation.

(a)

Purpose. This section details requirements for the annual documentation and redocumentation after revocation, suspension, or the surrender of documentation of midwives in Texas.

(b)

Provisions. This section establishes:

(1)

requirements and procedures for initial documentation;

(2)

requirements and procedures for annual redocumentation;

(3)

conditions for denial, revocation, suspension, or surrender of documentation;

(4)

guidelines for reissuance of documentation after revocation, suspension, or surrender of documentation;

(5)

guidelines for documentation of persons with criminal convictions; and

(6)

a state midwifery roster.

(c)

Applicability. In order for an individual to legally practice midwifery in Texas, she/he must be currently documented with the Midwifery Program. Documentation shall be valid for a period of one year, except for initial documentation. A midwife's initial documentation shall be valid from the date issued until March 1 of the current or following year, whichever occurs first.

(d)

Initial documentation. An individual may apply for documentation as a midwife at any time during the year by submitting the following to the Midwifery Program:

(1)

a completed documentation application form;

(2)

proof of:

(A)

satisfactory completion of an approved mandatory basic midwifery education course and the North American Registry of Midwives (NARM) exam, the American College of Nurse Midwifery (ACNM) exam, or any other comprehensive exam approved by the Midwifery Board; or

(B)

certified professional midwife (CPM) certification by NARM and satisfactory completion of a continuing education course covering the current Texas Midwifery Basic Information and Instructors Manual;

(3)

proof of current cardiopulmonary resuscitation (CPR) certification for health care providers by the American Heart Association (formerly a C certificate) or equivalent certification for the professional rescuer from the Red Cross;

(4)

proof of current certification for neonatal resuscitation, §§1-4, from the American Academy of Pediatrics, effective March 1, 1999;

(5)

proof of satisfactory completion of training in the collection of newborn screening specimens or an established relationship with another qualified and appropriately credentialed health care provider who has agreed to collect newborn screening specimens on behalf of the applicant; and

(6)

a nonrefundable $200 application fee (payable by cashiers check or money order only). The fee for any application for initial documentation received after September 1 shall be $100 plus $10 per month or part thereof remaining in the documentation period.

(e)

Annual redocumentation. Documented midwives must apply for redocumentation in January each year. Documentation expires March 1. The Midwifery Program will send renewal applications to all documented midwives in December of each year. However, each midwife is solely responsible for compliance with the requirements for redocumentation, and nonreceipt of the renewal application mailed by the Midwifery Program shall not constitute an acceptable excuse for failure to comply. A midwife's application for redocumentation must include the following:

(1)

a completed redocumentation application form;

(2)

proof of completion of at least ten contact hours of approved continuing midwifery education since March 1 of the previous year;

(3)

proof of current CPR certification for health care providers by the American Heart Association (formerly a C certificate) or equivalent certification for the professional rescuer from the Red Cross;

(4)

proof of current certification for neonatal resuscitation, §§1-4, from the American Academy of Pediatrics, effective March 1, 1999; and

(5)

a nonrefundable $200 application fee (payable by cashiers check or money order only).

(f)

Late redocumentation. A midwife who fails to apply for redocumentation by March 1 of a year in which the midwife is currently documented, as evidenced by a valid U.S. Postal Service or recognized commercial carrier postmark, may apply for late redocumentation on or before March 31 of that year. Applications for late redocumentation must include the following:

(1)

each of the items listed in subsection (e) of this section; and

(2)

an additional nonrefundable $75 late filing fee (payable by cashiers check or money order only).

(g)

Redocumentation after interim of less than four years. A midwife originally documented in Texas on or after January 1, 1995, who since that time has not been documented for a period of less than four years may redocument by:

(1)

providing proof of having completed 20 contact hours of approved midwifery continuing education, including a continuing education course covering the current Texas Midwifery Basic Information and Instructor Manual, during the 12 months preceding the application for redocumentation;

(2)

paying the annual documentation fee plus a processing fee of $100; and

(3)

meeting the initial documentation requirements in subsections (d)(1) and (3)-(5) of this section.

(h)

Redocumentation after interim of more than four years. A midwife documented in Texas on or after January 1, 1995, who has not been documented for a period of more than four years may redocument by:

(1)

providing proof of having completed at least 40 contact hours of approved continuing midwifery education within the year preceding the application, which shall be based upon a review of:

(A)

the current Texas Midwifery Basic Information and Instructor Manual; and

(B)

the current Midwives Alliance of North America (MANA) Core Competencies and Standards of Practice;

(2)

paying the annual documentation fee plus a processing fee of $100; and

(3)

meeting the initial documentation requirements in subsections (d)(1) and (3)-(5) of this section.

(i)

Grounds for denial of application for documentation or redocumentation and for disciplinary action. The Midwifery Board may deny an application for initial documentation or redocumentation and may take disciplinary action against any person based upon proof of the following:

(1)

violation of the Act or rules adopted under the Act;

(2)

submission of false or misleading information to the Midwifery Board, the board, or the department;

(3)

conviction of a felony or a misdemeanor involving moral turpitude;

(4)

intemperate use of alcohol or drugs while engaged in the practice of midwifery;

(5)

unprofessional or dishonorable conduct that may reasonably be determined to deceive or defraud the public;

(6)

inability to practice midwifery with reasonable skill and safety because of illness, disability, or psychological impairment;

(7)

judgment by a court of competent jurisdiction that the individual is mentally impaired;

(8)

disciplinary action taken by another jurisdiction affecting the applicant's legal authority to practice midwifery;

(9)

submission of a birth or death certificate known by the individual to be false or fraudulent, or other noncompliance with Health and Safety Code, Chapter 191, or 25 TAC, Chapter 181 (relating to Vital Statistics);

(10)

noncompliance with Health and Safety Code, Chapter 244, or 25 TAC, Chapter 137 (relating to Birthing Centers);

(11)

failure to practice midwifery in a manner consistent with the public health and safety; or

(12)

demonstrated lack of personal or professional character in the practice of midwifery.

(j)

Surrender of documentation.

(1)

A midwife may surrender his or her documentation prior to its expiration for the current period by mailing the original documentation acknowledgment letter back to the Midwifery Program together with a signed statement of his or her intent to surrender same.

(2)

Surrender of documentation by a midwife after receipt of notification from the Midwifery Program that a complaint against the midwife is being investigated shall not deprive the Midwifery Board of jurisdiction in any disciplinary action which may result from said investigation.

(3)

The Midwifery Board may enter any disciplinary order authorized by the Act or this subchapter to resolve a complaint against a midwife who has surrendered his or her documentation after receipt of notification from the Midwifery Program that a complaint is being investigated.

(k)

Redocumentation after disciplinary action or surrender.

(1)

A person whose documentation to practice midwifery in this state has been revoked or suspended by the Midwifery Board or who has surrendered his or her documentation after having received notice that the Midwifery Program is investigating a complaint may not apply for reissuance of documentation until the applicant has complied with all requirements imposed by the Midwifery Board in connection with the revocation, suspension, or surrender. If the Midwifery Board denies the application for reissuance of documentation, an applicant may request a hearing under 25 TAC §§1.51-1.55 (relating to Fair Hearing Procedures). The decision of the hearing examiner shall be final.

(2)

The Midwifery Board may reissue documentation to a midwife who surrendered his or her documentation while an investigation or disciplinary action was pending only if the Midwifery Board finds that:

(A)

the applicant is competent to resume practice; and

(B)

the Midwifery Program has no evidence of current or continuing violations by the applicant of the Act or this subchapter.

(l)

Documentation of persons with criminal conviction.

(1)

The Midwifery Board may refuse to issue documentation to any individual who has been initially convicted of a felony or a misdemeanor involving moral turpitude, or whose probation imposed pursuant to such conviction has been revoked by the court.

(2)

The Midwifery Board shall consider the following factors:

(A)

the nature and seriousness of the crime or the reason the applicant's probation was revoked;

(B)

any relationship between the crime and the practice of midwifery;

(C)

whether documentation might offer the applicant an opportunity to engage in the same or similar criminal activity as that for which the applicant was previously convicted; and

(D)

the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of midwifery.

(3)

the Midwifery Board, in determining the present fitness of a person who has been convicted of a felony or a misdemeanor involving moral turpitude, shall consider:

(A)

the age of the applicant when the crime was committed;

(B)

the amount of time that has elapsed since the applicant's conviction;

(C)

the applicant's conduct and work history prior to and following the conviction;

(D)

evidence of the applicant's progress toward rehabilitation while incarcerated, on probation, or following release; and

(E)

other evidence of the person's present fitness, including letters of recommendation from:

(i)

prosecutorial, law enforcement, probation, and correctional officers;

(ii)

the sheriff or chief of police in the community where the applicant resides; and

(iii)

other persons.

(m)

Midwifery roster. The Midwifery Program shall maintain a roster of all individuals currently documented to practice midwifery in the state. A copy of the roster shall be provided to each county clerk and local registrar of births on request. The Midwifery Program shall provide information on new and/or late documentees to individual county clerks and local registrars of births during the course of a year as needed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 16, 1998.

TRD-9818387

Edna Dougherty

Chair

Texas Midwifery Board

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 458-7236


Subchapter C. Education

22 TAC §831.31

The new section is proposed under Texas Civil Statutes, Article 4512i, §8A, which authorizes the Midwifery Board to adopt rules, subject to the approval of the Texas Board of Health, necessary for the documentation and regulation of Texas midwives.

The new section affects Texas Civil Statutes, Article 4512i.

§831.31.Education.

(a)

Purpose. This section defines requirements for mandatory basic midwifery education and continuing midwifery education.

(b)

Provisions. This section establishes:

(1)

an education committee;

(2)

standards for mandatory basic midwifery education;

(3)

standards for mandatory continuing midwifery education;

(4)

procedures for midwifery education course approval, denial, and revocation of approval;

(5)

procedures for midwifery comprehensive exam approval, denial, and revocation of approval;

(6)

procedures for appeals of denials of course and comprehensive exam approval applications and revocations of approval; and

(7)

procedures for investigation and disposition of complaints concerning education courses and comprehensive exams.

(c)

Applicability. All persons subject to the Act must comply with §831.11 of this title (relating to Annual Documentation), including the educational requirements for both initial documentation and redocumentation.

(d)

Education committee.

(1)

The Chairperson of the Midwifery Board shall appoint an education committee for one year terms, with the approval of the Midwifery Board, to consider all issues related to mandatory basic and continuing midwifery education. The Education Committee shall review all applications submitted by the Midwifery Program staff for approval of mandatory basic midwifery education courses or comprehensive exams, as well as complaints concerning approved courses or exams. The Education Committee will consist of the following persons:

(A)

members of the Midwifery Board:

(i)

two midwives, one of whom shall serve as chairperson;

(ii)

a physician or the certified nurse midwife; and

(iii)

a public interest member; and

(B)

a documented midwife who is not a member of the Midwifery Board.

(2)

The Midwifery Board chairperson may convene ad hoc working groups consisting of committee members, documented midwives, and other interested individuals, as necessary.

(3)

Except for informal settlement conferences, all other meetings and proceedings of the Education Committee shall be open to the public.

(e)

Basic Education.

(1)

The Midwifery Program staff shall consider for approval only courses which have a course supervisor/administrator and site in Texas.

(2)

Mandatory basic midwifery education shall:

(A)

be offered to ensure that only trained individuals practice midwifery in Texas;

(B)

be offered by any individual or organization meeting the requirements for course approval established by this subsection;

(C)

include a didactic component which shall:

(i)

be based upon and completely cover the most current Core Competencies and Standards of Practice of the Midwives Alliance of North America (MANA) and the current Texas Midwifery Basic Information Manual;

(ii)

prepare the student to apply for certification by North American Registry of Midwives (NARM); and

(iii)

include a minimum of 250 hours course work.

(D)

be supervised and conducted by a course supervisor/administrator who shall:

(i)

be responsible for all aspects of the course; and

(ii)

have two years of experience in the independent practice of midwifery or obstetrics; and

(iii)

have been primary care giver for at least 75 births including provision of prenatal, intrapartum, and postpartum care; and

(iv)

have met initial documentation requirements; or

(v)

be a Certified Professional Midwife (CPM); or

(vi)

be American College of Nurse Midwives (ACNM) certified; or

(vii)

be a licensed physician in Texas actively engaged in the practice of obstetrics.

(E)

include didactic curriculum instructors who:

(i)

have training and credentials for the course material they will teach; and

(ii)

are approved by the course supervisor/administrator.

(F)

provide clinical experience/preceptorship which prepares the student to become certified by NARM, including successful completion of at least the following activities:

(i)

serving as an active participant in attending 20 births;

(ii)

serving as the primary midwife, under supervision, in attending 20 additional births, at least 10 of which shall be out-of-hospital births;

(iii)

serving as the primary midwife, under supervision, in performing:

(I)

75 prenatal exams, including at least 20 initial history and physical exams;

(II)

20 newborn exams; and

(III)

40 postpartum exams.

(G)

include preceptors who are approved by the course supervisor/administrator and shall be:

(i)

documented midwives;

(ii)

certified professional midwives;

(iii)

certified nurse midwives; or

(iv)

physicians licensed in Texas and actively engaged in the practice of obstetrics.

(3)

Individuals enrolled as students in an approved midwifery course must possess:

(A)

a high school diploma or the equivalent; and

(B)

a current cardiopulmonary resuscitation (CPR) certificate for health care providers from the American Heart Association (formerly a C certificate) or an equivalent CPR certificate for the professional rescuer from the Red Cross.

(4)

Course approval.

(A)

The course supervisor/administrator shall submit an application form and a nonrefundable initial application fee of $150 to the Midwifery Program with the following supporting documentation:

(i)

course outline;

(ii)

course curriculum with specific content references to:

(I)

MANA Core Competencies;

(II)

NARM Skills Assessment Test Specifications; and

(III)

Texas Midwifery Basic Information Manual.

(iii)

identification of didactic and preceptorship teaching sites;

(iv)

a financial statement or balance sheet (within the last year) for the course supervisor/administrator or course owner and disclosure of any bankruptcy within the last five years; and

(v)

written policies to include:

(I)

tuition schedule, other charges, and cancellation and refund policy, including the right of any prospective student to cancel his/her enrollment agreement within 72 hours after signing the agreement and receive a full refund of any money which may have paid;

(II)

student attendance, progress, and grievance policies;

(III)

rules of operation and conduct of school personnel;

(IV)

requirements for state documentation;

(V)

disclosure of approval status of course;

(VI)

maintenance of student files; and

(VII)

reasonable access for non-English speakers and compliance with Federal and state laws on accessibility.

(B)

Student files shall be maintained for a minimum of five years and shall include:

(i)

evidence that the entrance requirements have been met;

(ii)

documentation demonstrating completion of didactic and clinical course work; and

(iii)

copies of any financial agreements between the student and the school.

(C)

The Midwifery Program staff and Education Committee chairperson shall review each course application submitted for approval. If an application for initial approval meets all of the requirements specified in this paragraph, a one-year provisional approval will be granted. An on-site evaluation of the course shall be scheduled. The evaluation shall be conducted by a member of the Midwifery Program staff and a documented midwife within the provisional year. The midwife member of the evaluation team shall be appointed by the Chairperson of the Midwifery Board and shall not be the supervisor, didactic instructor, or preceptor of another basic midwifery education course in the same geographic area. The site visit will include the following:

(i)

an inspection of the course's facilities;

(ii)

a review of its teaching plan, protocols, and teaching materials;

(iii)

a review of didactic and preceptorship instruction;

(iv)

interviews with staff and students; and

(v)

a review of student files.

(D)

A nonrefundable fee of $400 shall be assessed for each course approval site visit.

(E)

The review team's written report shall conclude with a recommendation to the Education Committee for approval or denial of the course.

(F)

The Education Committee shall evaluate the application and all other pertinent information, including any complaints received and the on-site review team's report and recommendation.

(G)

The Midwifery Board shall consider the application and the recommendations of the Education Committee and shall render a final decision during the provisional year. The decisions of the Education Committee and Midwifery Board shall be based upon the criteria specified in this subsection.

(H)

Each applicant shall be notified of the Midwifery Board's decision in writing within 10 working days. If an application is denied, the notification shall specify the reason(s) for denial.

(5)

Appeal of course denial. An appeal of a notification of a denial must be submitted in writing to the Chairperson of the Midwifery Board through the Midwifery Program within 21 working days of the applicant's receipt of the notice. Upon receipt of the appeal, the appellant will be placed on the agenda of the next scheduled meeting of the Midwifery Board, at which time the appellant may appear and the Board shall render a decision on the appeal.

(6)

Course reciprocity. A basic midwifery education course which is currently accredited by the Midwifery Education Accreditation Council (MEAC) shall be deemed approved under this subsection upon submission of evidence of such accreditation.

(7)

Duration of course approval.

(A)

The Midwifery Board shall approve courses for a three-year period.

(B)

Course approvals granted prior to December 31, 1996, shall expire upon the adoption of these rules, and course supervisors/administrators shall apply for initial approval within 60 days.

(C)

Course supervisors/administrators shall reapply for approval six months prior to expiration.

(8)

Course changes. Any substantive change(s) in the course or its content shall be submitted to the Midwifery Program staff prior to the change(s) if known in advance or within 10 working days after change(s). The Midwifery Program staff shall notify the Education Committee Chairperson. The Midwifery Board may reconsider the status of any course which has undergone substantive changes should the course no longer meet the requirements in subsections (e)(1)-(2) of this section.

(9)

Revocation of course approval. The Midwifery Board may revoke the approval of a course after notifying the course supervisor/administrator of its intended action and the opportunity for an appeal, if the Midwifery Board determines that:

(A)

the course no longer meets the standards established by this subsection;

(B)

the course supervisor, instructor(s), or preceptor(s) do not have the qualifications required by this subsection;

(C)

course approval was obtained by fraud or deceit;

(D)

the course supervisor has falsified course registration, attendance, and/or completion records; or

(E)

continued approval of the course is not in the public interest as defined by the Midwifery Board.

(10)

Fair hearing procedures. Notice and hearings required under this subsection will be conducted according to and will be governed by 25 TAC §§1.51-1.55 (relating to Fair Hearing Procedures), except that final decisions on hearings shall be made by the Midwifery Board rather than the commissioner.

(f)

Comprehensive exams.

(1)

Comprehensive exam approval.

(A)

Any approved education course or midwifery association may submit an application form and a nonrefundable initial application fee of $150 to the Midwifery Program with the following supporting documentation:

(i)

copy of exam;

(ii)

copy of all exam information and preparation materials, including sample test booklet(s);

(iii)

evidence that the written portion of the examination has been validated by an independent professional, as required by the Act, §11(b);

(iv)

references to the MANA Core Competencies included in the exam;

(v)

identification of proposed test sites;

(vi)

a financial statement or balance sheet (within the last year) for the course supervisor/administrator or course owner or midwifery association and disclosure of any bankruptcy within the last five years; and

(vii)

written policies to include:

(I)

charge for exam administration, other charges, and cancellation and refund policy;

(II)

confidentiality of individual exam scores;

(III)

administration and grading of exam;

(IV)

requirements for test sites and proctors;

(V)

disclosure of approval status of exam;

(VI)

complaint procedures;

(VII)

maintenance of exam files; and

(VIII)

reasonable access for non-English speakers and compliance with Federal and state laws on accessibility.

(B)

Separate exam files for each administration of the exam shall be maintained for a minimum of five years and shall include:

(i)

evidence of identity of all test takers, and of all proctors;

(ii)

documentation concerning exam administration procedures;

(iii)

copies of any financial agreements related to the administration of the exam;

(iv)

copies of any complaints received;

(v)

copies of exam(s) administered; and

(vi)

originals of all scored exams.

(C)

The Midwifery Program staff and Education Committee chairperson shall review each exam application submitted for approval. If an application for approval meets all of the requirements specified in this paragraph, it will be forwarded to the Education Committee within 60 days.

(D)

The Education Committee shall evaluate the application and recommend either approval or denial of the application to the Midwifery Board.

(E)

The Midwifery Board shall consider the application and the recommendations of the Education Committee and shall render a final decision.

(F)

Each applicant shall be notified of the Midwifery Board's decision in writing within 10 working days. If an application is denied, the notification shall specify the reason(s) for denial.

(2)

Appeal of exam denial. An appeal of a notification of a denial must be submitted in writing to the Chairperson of the Midwifery Board within 21 working days of the applicant's receipt of the notice. The appellant may appear at the next scheduled meeting of the Midwifery Board, at which the Board shall render a decision on the appeal.

(3)

Duration of exam approval.

(A)

The Midwifery Board shall approve exams for a three-year period;

(B)

Any revisions to the exam must be approved according to the requirements of this subsection; and

(C)

Course supervisors/administrators or associations of midwifery shall reapply for approval six months prior to expiration.

(4)

Exam changes/revisions. Any substantive change(s) in, or revisions to, the exam, its administration, or any of the policies associated with it, shall be submitted to the Midwifery Program staff prior implementation of the change(s), along with a explanation for the proposed change(s). The Midwifery Program staff shall notify the Education Committee Chairperson. The Midwifery Board may reconsider the status of any exam in which substantive changes have been made.

(A)

The Education Committee may request and consider any relevant information, including exam files, when reconsidering course approval.

(B)

The Education Committee shall forward its recommendations to the Midwifery Board.

(5)

Revocation of exam approval.

(A)

The Midwifery Board may revoke the approval of a exam after notifying the course supervisor/administrator or course owner or midwifery association of its intended action and the opportunity for an appeal, if the Midwifery Board determines that:

(i)

the exam or the course/association who submitted it for approval no longer meets the standards established by this subsection; or

(ii)

exam approval was obtained by fraud or deceit; or

(iii)

records required by this subsection have been falsified or are incomplete; or

(iv)

exam files or other relevant information have been withheld from the Midwifery Board or Education Committee despite a written request; or

(v)

continued approval of the exam is not in the public interest as defined by the Midwifery Board.

(B)

Each course supervisor/administrator or midwifery association shall be notified of the Midwifery Board's decision in writing within ten working days. If an application is denied, the notification shall specify the reason(s) for denial.

(C)

Notice and hearings required under this subsection will be conducted according to and will be governed by 25 TAC §§1.51-1.55 (relating to Fair Hearing Procedures), except that final hearing decisions will be made by the Midwifery Board rather than the commissioner.

(6)

Complaints. If a complaint cannot be resolved by the complaint process associated with the exam, the complainant may file a complaint against the exam or the course supervisor/administrator or course owner or midwifery association with the Education Committee in accordance with the procedures in subsection (h) of this section.

(g)

Continuing education.

(1)

Mandatory continuing midwifery education courses support the need for midwives practicing in Texas to maintain current knowledge and skills.

(2)

Courses may be offered by any individual or organization that meets the requirements for course approval established by this subsection.

(3)

Course curriculum must provide an educational experience which:

(A)

covers new developments in the fields of midwifery or related disciplines; or

(B)

reviews established knowledge in the fields of midwifery or related disciplines; and

(C)

shall be presented in standard contact hour increments for continuing health education; and

(D)

shall provide reasonable access for non-English speakers and comply with Federal and state laws on accessibility.

(4)

Course coordinators and instructors.

(A)

Course coordinators shall obtain course approval, register and certify participant attendance, and provide attendance certificates to participants following the course.

(B)

Course instructors shall have training and credentials appropriate for the course material they will teach.

(5)

Course approval. Continuing education courses attended to fulfill annual documentation requirements shall be accepted when the courses:

(A)

satisfy the requirements of subsection (g)(3)(A)-(C) of this section; and

(B)

are accredited by one of the following accrediting bodies:

(i)

a professional midwifery association, nursing, social work, or medicine;

(ii)

a college or university;

(iii)

a nursing, medical, or health care organization;

(iv)

a state board of nursing or medicine;

(v)

a department of health; or

(vi)

a hospital.

(h)

Complaint procedure, investigation, and disposition.

(1)

Purpose. This subsection defines the procedures for filing complaints against approved courses or exams. It further defines valid causes for discipline and procedures to be utilized by the Midwifery Program, the Education Committee, and the Midwifery Board in processing, investigating, and resolving complaints against approved courses or exams.

(2)

Provisions. This subsection establishes:

(A)

procedures for reporting violations and/or complaints;

(B)

procedures for investigating alleged violations and/or complaints;

(C)

procedures for informal hearings;

(D)

procedures for sanctions; and

(E)

procedures for complaint disposition and appeals.

(3)

Education Committee. The Education Committee shall consider all complaints filed against approved courses or exams and shall make recommendations to the Midwifery Board.

(A)

The Midwifery Board Chairperson may convene ad hoc working groups consisting of committee members, documented midwives, and other interested individuals as necessary.

(B)

All meetings of the Education Committee in which a complaint is being discussed shall be closed to the public. The Education Committee shall schedule an informal conference to discuss the investigation and any proposed recommendation. At no time shall the Education Committee or Midwifery Board disclose the identity of the complainant, or the course or exam that is the subject of the complaint.

(4)

Report of a complaint. Complaints may be accepted by the Midwifery Program by telephone, in person, or in writing from any person or agency alleging violations of this section.

(A)

The Midwifery Program staff shall mail a letter and complaint form to the complainant within 10 working days of being notified of the complaint. The complaint form shall request at least the following information:

(i)

the name, address, and telephone number of complainant (optional);

(ii)

the name, address, and telephone number of course supervisor/administrator or course owner or midwifery association that is the subject of the complaint;

(iii)

a complete statement of the complaint, including date(s), time(s), and location(s) of event(s);

(iv)

the name, address, and telephone number of any witnesses; and

(v)

a description of any other reporting, filing, or attempted resolution of the complaint.

(B)

The complaint review process begins when the completed complaint form is received by the Midwifery Program and assigned a case number, and the subject of the complaint is determined to be a course or exam approved under this section.

(C)

If the complaint form includes the complainant's name and address, the complainant shall be notified in writing of the Midwifery Program's receipt of the complaint form within 10 working days.

(5)

Records of complaints. The Midwifery Program shall maintain an information file about each complaint. The information file shall be kept current and shall contain, if applicable:

(A)

the written complaint;

(B)

a record of all persons contacted in relation to the complaint;

(C)

client records;

(D)

other requested records;

(E)

a summary of findings;

(F)

an explanation of the legal basis and the Midwifery Board's reason for dismissing a complaint;

(G)

sanctions imposed; and

(H)

other relevant information.

(6)

Complaint investigation. The Midwifery Program Director shall:

(A)

notify the course supervisor/administrator or course owner or midwifery association of the Midwifery Program's receipt of the complaint by certified mail;

(B)

request all relevant records necessary to conduct an investigation of the complaint;

(C)

interview the complainant, the respondent, and any witnesses;

(D)

review and evaluate all information received;

(E)

forward the complaint to any other agencies or organizations which may also have jurisdiction and/or refer the complainant to said agencies or organizations;

(F)

present each complaint to the Education Committee; and

(G)

notify the course supervisor/administrator or course owner or midwifery association by certified mail of the date and time of the Education Committee at which the complaint will be presented, at least 30 days in advance.

(7)

Settlement conference. The Education Committee chairperson or, in his/her absence, the vice-chairperson, will preside over and conduct the conference.

(A)

On the day and time designated for the conference, the chairperson/vice-chairperson shall:

(i)

state the purpose of and the legal authority for the conference; and

(ii)

outline the procedure and order of presentation to be followed.

(B)

Order of presentation. After making the necessary introductory and explanatory remarks, the chairperson/vice-chairperson shall state the case number and the nature of the complaint.

(i)

The Education Committee shall review all available evidence from the investigation, including any statements from the complainant and the course supervisor/administrator or course owner or midwifery association. The Education Committee may question any person present regarding relevant information. Whether or not the complainant or course supervisor/administrator or course owner or midwifery association is present, the settlement conference shall proceed with the information on hand.

(ii)

Evidence and statements shall be reviewed by the Education Committee and one of the following recommendations made to the Midwifery Board:

(I)

close the complaint file due to insufficient evidence; or

(II)

enter an agreed order.

(iii)

Complaints not resolved by settlement conference shall be referred for a hearing.

(8)

Hearings.

(A)

All administrative hearings under this section shall be conducted according to 25 TAC §§1.51-1.55 (relating to Fair Hearing Procedures).

(B)

All proposals for decision shall be referred to the Midwifery Board for final decision.

(9)

Guidelines for sanctions. The Midwifery Board/Education Committee shall consider the following factors in imposing sanctions:

(A)

the severity of the offense;

(B)

the damage to the public or to the profession of midwifery;

(C)

the number of repetitions of the offense;

(D)

the length of time since date of offense;

(E)

the number of sanctions imposed upon the course supervisor/administrator or course owner or midwifery association;

(F)

the length of time the course or exam has been offered;

(G)

the actual injury, financial or otherwise, suffered by the student(s) or person(s) taking the exam;

(H)

any efforts at rehabilitation or remediation by the course supervisor/administrator or course owner or midwifery association; and

(I)

any other mitigating or aggravating circumstances.

(10)

Penalties and Sanctions. If the Midwifery Board finds that a course supervisor/administrator or course owner or midwifery association has violated this subsection, it shall enter an order imposing one or more of the following:

(A)

a written warning;

(B)

limitation or restriction of course or exam approval for a specified time;

(C)

suspension of course or exam approval for a specified time;

(D)

revocation of course or exam approval;

(E)

probation of any sanction imposed on the course supervisor/administrator or course owner or midwifery association;

(F)

acceptance by the Midwifery Board of the voluntary surrender of approval and without the opportunity for reinstatement unless the Midwifery Board determines the course supervisor/administrator or course owner or midwifery association is competent to resume offering the course or exam; or

(G)

imposition of conditions for approval that the course supervisor/administrator or course owner or midwifery association must satisfy before the Midwifery Board issues an unrestricted approval.

(11)

Failure to cooperate. Failure to provide records requested by the Midwifery Program, without good cause shown, shall be grounds for additional disciplinary action.

(12)

Disposition.

(A)

Agreed disposition.

(i)

The Midwifery Board may, unless precluded by law or this section, make a disposition of any complaint by agreed order.

(ii)

An agreed disposition is considered a disciplinary order for purposes of reporting under this chapter and of administrative hearings and proceedings by state and federal regulatory agencies regarding the practice and education of documented midwives. An agreed order is a public record. In civil or criminal litigation, an agreed disposition is a settlement agreement under Texas Rules of Civil Evidence, Rule 408, and Texas Rules of Criminal Evidence, Rule 408.

(B)

Closed file. The Midwifery Board may close the complaint file due to insufficient evidence.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 16, 1998.

TRD-9818388

Edna Dougherty

Chair

Texas Midwifery Board

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 458-7236


Subchapter D. Practice of Midwifery

22 TAC §831.101

The new section is proposed under Texas Civil Statutes, Article 4512i, §8A, which authorizes the Midwifery Board to adopt rules, subject to the approval of the Texas Board of Health, necessary for the documentation and regulation of Texas midwives.

The new section affects Texas Civil Statutes, Article 4512i.

§831.101.Administration of Oxygen.

(a)

Purpose. This section outlines procedures for administration of oxygen by midwives. Whether or not a midwife chooses to administer oxygen to the mother and/or newborn, the midwife remains responsible for assessing the client and/or newborn; consultation; referral; and/or recommending transfer or transport of the mother and newborn in compliance with §831.51 of this title (relating to Midwifery Practice Standards and Principles).

(b)

Under this section a midwife is not required to use oxygen.

(c)

Provisions. This section establishes that:

(1)

intrapartum oxygen may be administered to the mother via mask at 8-10 liters/minute for the following:

(A)

fetal heart rate irregularities while assessing for consultation and/or possible transfer;

(B)

cord prolapse prior to transport;

(C)

signs or symptoms of maternal shock or hemorrhage prior to transport; or

(D)

as indicated by American Heart Association Cardiopulmonary Resuscitation guidelines;

(2)

postpartum oxygen may be administered:

(A)

to the newborn via free-flow oxygen, mask, and/or bag at a rate of 1-2 liters/minute, but not exceeding 5 liters/minute, during the initial neonatal period concurrent with American Academy of Pediatrics certification in Neonatal Resuscitation guidelines; or

(B)

to the mother and/or newborn in other situations not listed above and deemed necessary according to generally accepted standards of midwifery practice to protect the health and well-being of the mother and/or newborn;

(3)

indications for administration of oxygen shall be clearly documented in the client's chart.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 16, 1998.

TRD-9818389

Edna Dougherty

Chair

Texas Midwifery Board

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 458-7236


Subchapter E. Complaint Review

22 TAC §831.161

The new section is proposed under Texas Civil Statutes, Article 4512i, §8A, which authorizes the Midwifery Board to adopt rules, subject to the approval of the Texas Board of Health, necessary for the documentation and regulation of Texas midwives.

The new section affects Texas Civil Statutes, Article 4512i.

§831.161.Complaint Review.

(a)

Purpose. This section defines the procedures for reporting alleged violations of the Act and this subchapter. It further defines grounds for disciplinary action and procedures to be utilized by the Midwifery Program and the Midwifery Board in processing, investigating, and resolving complaints against midwives practicing in Texas.

(b)

Provisions. This section establishes:

(1)

a Complaint Review Committee;

(2)

procedures for reporting violations and/or complaints;

(3)

categories of violations;

(4)

procedures for investigating alleged violations and/or complaints;

(5)

procedures for release of relevant records and/or medical records;

(6)

procedures for participation by the complainant;

(7)

procedures for informal settlement conferences;

(8)

procedures for hearings;

(9)

procedures for disciplinary action; and

(10)

procedures for complaint disposition and appeals.

(c)

Complaint Review Committee. With the approval of the Midwifery Board, the chairperson of the Midwifery Board shall appoint a Complaint Review Committee for one-year terms to consider all complaints filed against documented midwives and to make recommendations to the Midwifery Board.

(1)

The Complaint Review Committee shall consist of:

(A)

the following Midwifery Board members:

(i)

one midwife, who shall serve as the chairperson;

(ii)

a physician or certified nurse midwife; and

(iii)

a public interest member; and

(B)

the following persons who are not members of the Midwifery Board:

(i)

three midwives in active practice; and

(ii)

one member of the public.

(2)

The Midwifery Board chairperson may appoint ad hoc working groups consisting of committee members, documented midwives, and other persons as necessary.

(3)

During the investigation and consideration of a complaint, the Complaint Review Committee shall schedule an informal conference to discuss the investigation and to consider any recommendations for disposition of the complaint. At no time shall the Complaint Review Committee or Midwifery Board disclose the identity of the midwife's client or the complainant.

(d)

Report of a complaint. Any person or agency may contact the Midwifery Program by telephone, in person, or in writing, alleging that a documented midwife has violated the Act, any provisions of this subchapter, or any other law or rule relating to the practice of midwifery in Texas.

(1)

Midwifery Program staff shall provide a complaint form to the complainant by mail within ten working days of being contacted by the complaint.

(2)

The complaint review process begins when:

(A)

the complaint form is received by the Midwifery Program;

(B)

the Midwifery Program confirms that the subject of the complaint is a midwife documented in Texas and/or practicing midwifery in Texas; and

(C)

the Midwifery Program assigns a case number.

(3)

If the complainant has provided his or her name and address, the Midwifery Program shall confirm receipt of the complaint form in writing within ten working days.

(e)

Records of complaints. The Midwifery Program shall maintain the following information concerning each complaint filed, if applicable:

(1)

a copy of the complaint;

(2)

record of all persons contacted in relation to the complaint;

(3)

client records;

(4)

other records requested during the investigation;

(5)

a summary of findings;

(6)

basis for recommending dismissal of the complaint;

(7)

disciplinary action taken; and

(8)

other relevant information.

(f)

Complaint categories.

(1)

The Midwifery Program Director shall assign one of the following categories for each complaint for the initial allocation of investigative resources:

(A)

an alleged violation of the Act and/or rules involving actual deception, fraud, or injury to clients or the public;

(B)

an alleged violation of the Act and/or rules involving a high probability of deception, fraud, or injury to clients or the public;

(C)

an alleged violation of the Act and/or rules involving a potential for deception, fraud, or injury to clients or the public; or

(D)

all other complaints.

(2)

The final complaint category shall be assigned by the Complaint Review Committee after completion of the investigation.

(g)

Disciplinary action and guidelines.

(1)

The Midwifery Board and the Complaint Review Committee shall consider the following factors when taking or recommending disciplinary action:

(A)

the severity of the offense;

(B)

the danger to the public;

(C)

the number of repetitions of offenses;

(D)

the length of time since date of violation;

(E)

any other disciplinary actions taken against the midwife;

(F)

the length of time the midwife has practiced;

(G)

the extent of the client's injuries, physical or otherwise;

(H)

any efforts at rehabilitation or remediation by the midwife;

(I)

prior determinations by the Midwifery Board that a midwife has viol9vated the Act and/or rules; and

(J)

any other mitigating or aggravating circumstances.

(2)

In addition to or in lieu of the penalties and sanctions under subsection (k), the following administrative penalties shall be used in recommending disposition of complaints involving the following violations:

(A)

for intentional alteration or falsification of birth or death certificates; revocation of documentation and an administrative penalty not to exceed $1000;

(B)

for intentional alteration or falsification of client records or reports, other than birth or death certificates, or misrepresentation of facts:

(i)

for the first offense, an administrative penalty not to exceed $100;

(ii)

for a second offense, an administrative penalty not to exceed $200; and

(iii)

for subsequent offenses, an administrative penalty not to exceed $500 per offense, with each day of a continuing violation constituting a separate violation.

(C)

for failure to submit, upon request, to the Midwifery Program any records or reports relating to the practice of midwifery required under the Act:

(i)

for the first offense, an administrative penalty not to exceed $100;

(ii)

for a second offense, an administrative penalty not to exceed $200; and

(iii)

for subsequent offenses, an administrative penalty not to exceed $500 per offense, with each day of a continuing violation constituting a separate violation;

(D)

for violations of §831.51 of this title (related to Midwifery Practice Standards and Principles):

(i)

for the first offense, an administrative penalty not to exceed $200;

(ii)

for a second offense, an administrative penalty not to exceed $400; and

(iii)

for a subsequent offense:

(I)

an administrative penalty not to exceed $1,000 per offense, with each day of a continuing violation constituting a separate violation; and

(II)

revocation of documentation;

(E)

for practicing midwifery without documentation, with lapsed documentation, or while documentation has been suspended or revoked, the Midwifery Board may request that the attorney general or a district, county, or city attorney institute a civil action in district court to collect a civil penalty not to exceed $250 per offense, with each day of a continuing violation constituting a separate violation;

(F)

for procuring or renewing documentation through fraud:

(i)

denial of documentation; and

(ii)

an administrative penalty not to exceed $1000 per offense, with each day of a continuing violation constituting a separate violation;

(G)

for failure to practice midwifery in a manner consistent with public health and safety:

(i)

denial of documentation;

(ii)

suspension of documentation; or

(iii)

revocation of documentation;

(H)

for all other violations of the Act and/or rules not covered by this subsection: disciplinary sanctions determined on a case by case basis.

(3)

Failure by a midwife to practice midwifery in a manner consistent with public health and safety shall include, but shall not be limited to:

(A)

making deceptive or fraudulent representations in the practice of midwifery, including, but not limited to false claims of proficiency in any field;

(B)

mistreating a client, including, but not limited to:

(i)

verbal or physical abuse of client;

(ii)

abandonment immediately before or during labor; or

(iii)

repeated failure to appear at scheduled appointments without canceling, except in an emergency situation;

(C)

exploiting the client and/or her family by engaging in a sexual relationship or misconduct during the provision of midwifery care;

(D)

using or maintaining a work area, equipment, or clothing that is unsanitary, except in an emergency situation;

(E)

failing to supervise midwifery students or apprentices in his/her charge effectively;

(F)

using fraud in the practice of midwifery, practicing midwifery with gross incompetence, with gross negligence on a particular occasion, or with a pattern of fraud, negligence, or incompetence;

(G)

willfully failing to inform or misleading a client who requests the name, mailing address, or telephone number of the Midwifery Program for the purpose of filing a complaint; or

(H)

failing to provide a written explanation of charges previously made on a bill or statement in response to the client's written request.

(h)

Complaint investigation. The Midwifery Program Director or director's designee shall:

(1)

notify the midwife of the complaint by certified mail within ten working days of reading the complaint;

(2)

obtain all relevant midwifery records and medical records necessary to conduct an investigation of a complaint without the necessity of consent of the midwife's client;

(3)

interview the complainant, the respondent, and any witnesses;

(4)

obtain any available peer review reports;

(5)

review and evaluate all information received;

(6)

forward complaint(s) not within the Midwifery Board's jurisdiction to other agencies and/or refer complainants to appropriate agencies;

(7)

present each complaint to the Complaint Review Committee; and

(8)

notify the midwife by certified mail of the category initially assigned to the complaint and the date and time of the Complaint Review Committee meeting at which the complaint will be considered, at least 30 days in advance. The midwife shall be afforded an opportunity to present relevant evidence and to show compliance with all requirements of law for the retention of documentation.

(i)

Settlement conference. The Complaint Review Committee chairperson shall conduct the conference. If the chairperson is absent, the vice-chairperson shall preside.

(1)

The chairperson/vice-chairperson shall:

(A)

state the legal authority for and the purpose of the conference; and

(B)

outline the procedure to be followed.

(2)

Order of presentation. After explaining the purpose of the conference and other related matters, the chairperson/vice-chairperson shall state the case number and the nature of the complaint.

(A)

The Complaint Review Committee shall review all information obtained during the investigation and any statements from the complainant and/or the midwife. The Complaint Review Committee may question any person present regarding relevant information. Unless the midwife requests and is granted a continuance, the settlement conference shall proceed with the information available, whether or not the complainant or the midwife is present.

(B)

The midwife shall be afforded an opportunity to present relevant evidence and to show compliance with all requirements of law for the retention of documentation.

(C)

Following review of all evidence and statements, the Complaint Review Committee shall make one of the following recommendations to the Midwifery Board:

(i)

closure of the complaint due to insufficient evidence; or

(ii)

entry of an agreed order.

(D)

Matters not resolved by settlement conference shall be referred for a hearing.

(j)

Hearings.

(1)

All administrative hearings under this subchapter shall be conducted according to 25 TAC §§1.51-1.55 (relating to Fair Hearing Procedures) unless the midwifery board seeks to assess an administrative penalty under the Act, §18E.

(2)

If the midwifery board seeks to assess an administrative penalty, as either the sole sanction or in combination with other penalties and sanctions authorized by this subchapter, said administrative hearing shall be conducted according to 25 TAC §§1.21-1.32 (relating to Formal Hearing Procedures).

(3)

All proposals for decision will be referred to the Midwifery Board for final decision.

(k)

Penalties and Sanctions. If the Midwifery Board finds a person has violated the Act and/or rules adopted under the Act or any other law or rule relating to the practice of midwifery in Texas, it shall enter an order imposing one or more of the following:

(1)

denial of the person's application for documentation;

(2)

issuance of a written warning;

(3)

limitation or restriction of the midwife's practice for a specified time;

(4)

suspension of the midwife's documentation for a specified time;

(5)

revocation of the midwife's documentation;

(6)

required participation by the midwife in counseling and treatment for psychological impairment, or intemperate use of alcohol or drugs;

(7)

required participation by the midwife in one or more education programs;

(8)

required practice by the midwife under the direction of a preceptor for a specified period;

(9)

probation of any penalty imposed;

(10)

acceptance of the voluntary surrender of a midwife's documentation, but without reissuance of documentation unless the Midwifery Board determines the midwife is competent to resume practice;

(11)

imposition of conditions for reinstatement that the midwife must satisfy before the Midwifery Board reissues documentation following suspension, revocation, or voluntary surrender; or

(12)

assessment of an administrative penalty against not to exceed $1,000 for each violation, with each day of a continuing violation constituting a separate violation.

(l)

Failure to cooperate. Failure to provide records requested by the Midwifery Program in the course of a complaint investigation, without good cause shown, shall constitute grounds for additional disciplinary action.

(m)

Disposition.

(1)

The Midwifery Board may, unless precluded by law or this section, make a disposition of any complaint by agreed order.

(2)

An agreed disposition is considered a disciplinary order for purposes of reporting under this chapter and of administrative hearings and proceedings by state and federal regulatory agencies regarding the practice of documented midwives. An agreed order is a public record. In civil or criminal litigation, an agreed disposition is a settlement agreement under Texas Rules of Civil Evidence, Rule 408, and Texas Rules of Criminal Evidence, Rule 408.

(3)

The Midwifery Board may close the complaint due to insufficient evidence.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 16, 1998.

TRD-9818390

Edna Dougherty

Chair

Texas Midwifery Board

Earliest possible date of adoption: January 31, 1999

For further information, please call: (512) 458-7236