Part 11.
BOARD OF NURSE EXAMINERS
Chapter 213.
PRACTICE AND PROCEDURE
22 TAC §213.30
The Board of Nurse Examiners adopts without changes an amendment
to 22 TAC §213.30, concerning Declaratory Order of Eligibility for Licensure.
The proposed amendment was published in the November 11, 2005, issue of the
This section addresses the requirements for initial licensure and the eligibility
process. The amendment specifically adds new subsection (h) and relates to
decisions that are made to deny eligibility for licensure in Texas.
One comment was received in response to the proposed amendment and was
submitted by the Texas Nurses Association. The comment expressed concern that
individuals who are proposed to be denied by the Executive Director or the
Eligibility Committee and request a hearing at SOAH will be penalized with
a waiting period of three years, while those individuals who withdraw their
appeal will be allowed to repetition in one year. TNA stated that §213.30(h)
is inconsistent with the Legislative intent of Texas Occupation Code §301.257(e)
which states that "[i]f the board proposes to find that the petitioner is
ineligible for a license, the petitioner is entitled to a hearing before the
State Office of Administrative Hearings."
The board disagrees that the proposed amendment is inconsistent with §301.257.
Section 301.257(e) only speaks to an applicant's rights when there is a
TNA further states that the proposed amendment serves no public purpose
other than to discourage individuals from exercising their due process right.
TNA states that exercising a right to SOAH review is not inconsistent with
wanting to correct the underlying basis for the proposed denial. Staff disagrees
with TNA's comments. An individual is still entitled to a hearing if he disagrees
on the proposed denial of eligibility and believes that he does not have a
ground for ineligibility. SOAH review is statutorily authorized and not prevented
by the proposed amendment. The rule would require a waiting period only after
a final order confirming on what ground of ineligibility exists. The petitioner
is never prevented from seeking a hearing as authorized by §301.257(e).
In fact, the proposed rule actually permits re-petitioning after three years
of an adjudication of ineligibility.
Lastly, TNA states that the BNE cannot justify imposing a different requirement
based on whether an individual elected to exercise a right to a hearing. The
board disagrees with this comment because the Board's enabling legislation
expressly differentiates between a proposal to find an applicant ineligible
(§301.257(e)) and an adjudication that an applicant is ineligible (§301.257(f)).
The proposed amendment is a reasonable policy based on the Board's statute.
The amendment is adopted pursuant to Texas Occupations Code §301.151
which authorizes the board to adopt rules necessary for the performance of
its duties.
The proposed amendment affects Texas Occupations Code §301.257.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 30, 2006.
TRD-200600469
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: February 19, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 305-6823
22 TAC §216.3
The Board of Nurse Examiners adopts without changes amendments
to 22 TAC §216.3, concerning Continuing Education. The proposed amendments
were published in the November 11, 2005, issue of the
Texas Register
(30 TexReg 7350).
Senate Bill 39 (79th Regular Session, 2005) amended the Nursing Practice
Act (NPA) by adding §301.306, Forensic Evidence Collection Component
in Continuing Education. Under the new language, a licensed nurse "employed
to work in an emergency room setting" will be required to complete a minimum
of 2 hours of targeted CE in forensic evidence collection not later than September
1, 2008 or the second anniversary of the initial issuance of a license under
this chapter. The bill also requires that a rule be in place no later than
January 1, 2006. In addition, House Bill 2680 (79th Regular Session, 2005)
amended Texas Occupations Code §112.051 and requires regulatory agencies
of healthcare practitioners (including the Board) to "adopt rules providing
for reduced fees and continuing education requirements for retired health
care practitioners whose only practice is voluntary charity care." The adopted
amendments will implement these statutes.
Three comments were received: two from individuals in response to the forensic
evidence continuing evidence and one from CNAP in response to the proposed
amendments to the voluntary charity care amendments.
Comment from an individual: Could the BNE require more than just two hours
of CE (Suggest maybe 2 hours the first year, an additional 2 hours the second
year, etc.)? Also, the rule doesn't require nearly enough about documentation.
Response: Given the multitude of practice settings and procedures nurses
may perform, requiring prescriptive training requirements for every task or
procedure a nurse may be able to perform would be a never-ending task. Proposed
rule language, 22 TAC §216.3(6), mirror-images the language in the statute
(Texas Occupations Code §301.306). Both the statute and the rule mandate
a "minimum" of 2-hours of continuing education in forensic evidence collection.
There is nothing that would preclude a facility making more stringent CE requirements
if the facility so chooses. The BNE has no jurisdiction over facilities.
The Board holds each licensed nurse accountable to comply with the Nursing
Practice Act as well as Board Rules. In particular, §217.11, Standards
of Nursing Practice, sets forth broad requirements for a nurse, regardless
of practice setting. This rule requires a nurse to act in the client's best
interest, including:
a. (1)(B) "maintain a safe environment for clients and others;"
b. (1)(G) "obtain instruction and supervision as necessary when implementing
nursing procedures or practices;"
c. (1)(H) "make a reasonable effort to obtain orientation/training for
competency when encountering new equipment and technology or unfamiliar care
situations;"
d. (1)(R) "be responsible for one's own continuing competency in nursing
practice and individual professional growth;" and
e. (1)(T) "accept only those nursing assignments that take into consideration
client safety and that are commensurate with the nurse's educational preparation,
experience, knowledge, and physical and emotional ability."
With regard to broad documentation parameters of the rule: The statutes
for evidence collection and documentation are contained in laws outside the
jurisdiction of the BNE. The terminology "service-approved evidence collection
kit and protocol" is taken directly from Chapter 420, §420.031 of the
Government Code. The statutes in Chapter 420 may be viewed at the web site
for the Texas Statutes (http://www.capitol.state.tx.us/statutes). Though this
particular law addresses sexual assault evidence collection specifically,
the term itself is generic in nature and intended to encompass evidence collection
and documentation standards for any given practice situation relating to forensics,
not just sexual assaults.
The Board has long maintained the position that nursing professional organizations
and/or regulatory entities that focus on a specialty area of practice are
far better resources for determining appropriate standards of care for a given
specialty area of nursing. Given that various types of forensic evidence collection
would meet rule requirements and evidence-based practice standards are always
evolving are further reasons why an extensive list of prescriptive documentation
requirements would not serve the best interest of protecting the public or
communicating current standards of care to nurses in any given specialty area.
For example, in addition to standardized documentation required in the
Sexual Assault Prevention and Crisis Services (SAPCS) Protocol, facilities
providing sexual assault services to victims must also comply with other laws
that involve mandatory documentation of findings and services offered to the
victim for legal as well as medical purposes. As the BNE has no jurisdiction
over facilities, we cannot speak to these requirements; however, the facility
may be required to have policies that address specific documentation mandates
that impact any nurse involved with sexual assault or other types of forensic
examinations.
Comment from an individual: Many aspects of forensics exist, and not all
are related to sexual assault. The California Board of Nurse Examiners allows
their nurses to obtain CEUs related to all types of Forensics. In the Emergency
Department (ED), gunshot wounds, motor vehicle accidents, and assaults are
classified under forensics. Is the Texas forensic CEU requirement only related
to sexual assault evidence collection?
Response: Proposed §216.3(6) does not limit appropriate CE to only
sexual assault evidence collection. Nursing laws can and do vary from state-to-state.
The Texas Legislature passes laws (Texas Occupations Code, Chapters 301, 303,
and 304) that establish the requirements for nursing education and practice
in Texas. The Board of Nurse Examiners must then create and/or amend Rules
to implement the statutes as passed by the Legislature each biennial session;
therefore, what is acceptable in California may or may not be acceptable to
meet licensure requirements in Texas.
Proposed §216.3(6) specifically addresses requirements in NPA §301.306,
Forensic Evidence Collection Component in Continuing Education. While Senate
Bill 39 (79th Regular Session, Texas Legislature (2005)) did not include language
limiting "forensic evidence collection" to only sexual assault victims, a
review of the Bill analysis and history demonstrate that this was the original
intent of this legislation. The Board believes the generic nature of the final
bill language encompasses broader training in forensic evidence collection.
Thus, nurses whose practice settings include the ED are encouraged to seek
CE offerings that are relative to the types of patients seen in the nurse's
clinical practice.
Comment from the Director of Public Policy for CNAP, Lynda Woolbert, regarding
the voluntary charity care amendments: §216.3(7)(B)(ii) specifies that
an APN licensed as a VR-RN may not have prescriptive authority. While I completely
understand that many APNs licensed as a volunteer retired RN may not meet
the 400 hour biannual practice requirement, there may be some who volunteer
on a regular basis and easily meet this requirement. Since the purpose of
House Bill 2680 was to encourage retired health care providers to use the
expertise in a volunteer capacity, it seems appropriate to give APNs practicing
on a VR-RN license the option of meeting more rigorous standards in order
to have prescriptive authority.
CNAP understands that these rules need to be adopted by January 1, 2006...CNAP
requests that a revision in this rule be proposed as soon as possible. We
think it is important that APNs practicing on a VR-RN license have the option
of retaining prescriptive authority if that APN meets practice and national
certification standards.
Response: The Board appreciates CNAP's comments; however, other laws both
within and outside of the jurisdiction of the BNE preclude permitting non-licensed
practitioners from holding prescriptive authority privileges. Proposed §217.9(d)
as well as §216.3(7) grant authorization to nurses who are 65 years old
or older but who, rather than retaining their nursing
license
, choose instead to function in a volunteer capacity only, providing
charity care in conjunction with a charitable organization as defined in §217.9(d)(5)
[and as defined in §84.003 of the Texas Civil Practices and Remedies
Code]. Authorization is not the same as licensure.
Section 221.4(a)(1) requires that a person possess a "valid, current, unencumbered
license as a registered nurse..." in order to seek or retain authorization
as an advanced practice nurse. Section 221.9(b) further states that "...the
inactive advanced practice nurse may not utilize his/her limited prescriptive
authority." These requirements are congruent with additional requirements
in §222.5 and §222.6 relating to active licensure and advanced practice
authorization requirements for prescribing either dangerous drugs or controlled
substances. Laws outside of the jurisdiction of the BNE also preclude non-licensed
practitioners from prescribing either dangerous or controlled substances.
As an additional clarification, APNs who have authorization as volunteer
retired nurses do not have to have 400 hours of active practice per biennium,
nor do they have to maintain national certification in their advanced practice
role and specialty. In accordance with other Board rules, if a registered
nurse with advanced practice authorization wishes to maintain full authorization
to practice as well as prescriptive authority privileges, he/she must retain
an active RN license, as well as active APN authorization with Prescriptive
Authority, and must meet all requirements for renewal including 400 hours
of practice and national certification as required by Board rule.
The amendments are adopted pursuant to the authority of Texas
Occupations Code §301.151 and §301.152 which authorizes the Board
of Nurse Examiners to adopt, enforce, and repeal rules consistent with its
legislative authority under the Nursing Practice Act.
The amendments will implement Texas Occupations Code §112.051 and §301.306.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 30, 2006.
TRD-200600468
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: February 19, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 305-6823
Chapter 216.
CONTINUING EDUCATION
Chapter 217.
LICENSURE, PEER ASSISTANCE AND PRACTICE