TITLE 22.EXAMINING BOARDS

Part 5. STATE BOARD OF DENTAL EXAMINERS

Chapter 114. EXTENSION OF DUTIES OF AUXILIARY PERSONNEL--DENTAL ASSISTANTS

22 TAC §114.20

The Texas State Board of Dental Examiners (Board) proposes a new §114.20, regarding radiologic certification for dental assistants, to be added to 22 TAC Chapter 114. The section is proposed to enact certain requirements imposed by Senate Bill 610, §9, 79th Legislature, which requires that dental assistants who perform radiologic procedures be certified by the Board.

The proposed section details the general requirements and process for the certification of dental assistants who perform radiologic procedures. The language of the section is consistent with the revised statutory language, similar Board rules regarding registration, and the recommendations of the Dental Assistant Advisory Committee, which consisted of dentists, dental assistants, dental hygienists, and educators.

Dr. Jim Zukowski, Ed.D., Executive Director of the Texas State Board of Dental Examiners, has determined that for each year of the first five-year period the section is in effect, there will be limited fiscal implications for local or state government as a result of enforcing or administering the section.

There is an anticipated economic cost to persons who are required to comply with the section as proposed, arising from the cost of required courses and examinations, and incidental costs. There is no anticipated local employment impact as a result of enforcing the sections as proposed.

Dr. Zukowski, Ed.D., has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcement will be the improvement in the education, capabilities, and regulation of dental assistants who perform radiographic procedures on patients in the State of Texas.

The fiscal implications for small or large businesses will be minimal or none at all. Therefore, the Board has determined that compliance with the proposed section will not have an adverse economic impact on small businesses when compared to large businesses. The requirements of this section will impact individuals who make application for registration, and would only impact small businesses who choose to pay course registration and examination fees for their dental assistant employees.

Comments on the proposal may be submitted to Dr. Jim Zukowski, Ed.D., Executive Director, Texas State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701, or by fax at (512) 463-7452. To be considered, all written comments must be received by the Texas State Board of Dental Examiners no later than 30 days from the date that this amended section is published in the Texas Register .

The section is proposed under Texas Government Code §2001.021 et seq., and Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties, and Senate Bill 610, §9, 79th Legislature, which requires the Board to establish rules for the certification of dental assistants who position or expose radiographs.

The proposed section affects Title 3, Subtitle D of the Occupations Code and Title 22, Texas Administrative Code, Chapter 101-125.

§114.20.Radiologic Credential.

(a) Beginning September 1, 2006, a dental assistant may not position or expose dental x-rays unless the dental assistant holds a certificate of registration issued by the State Board of Dental Examiners under either this section or §114.2, except that:

(1) any dental assistant certified under former §115.10 (now recodified as §114.10 of this chapter) prior to September 1, 2004, and who has not been registered under §114.2 of this chapter prior to September 1, 2006, shall not be required to register under this §114.20 until September 1, 2007, and shall continue to be governed by §114.10 until September 1, 2007; and,

(2) any dental assistant certified under §114.2 of this chapter prior to September 1, 2006 shall not be required to reapply under this §114.20, but shall be considered duly registered pursuant to the requirements of this section.

(b) To be eligible for a certificate of registration as a dental assistant under this section, an applicant must present on or accompanying an application form approved by the State Board of Dental Examiners proof satisfactory to the Board that the applicant has:

(1) Paid all application, examination and licensing fees required by law and Board rules and regulations;

(2) Successfully completed a current course in basic life support; and,

(3) Either:

(A) taken and passed a course and examination as required by §114.21 of this chapter; or,

(B) if the applicant is currently certified as a dental assistant by the Dental Assisting National Board, completed a course and passed an examination covering jurisprudence, as defined in §114.21 of this chapter.

(c) The State Board of Dental Examiners has established a staggered dental assistant registration system comprised of initial registration periods followed by annual registrations (i.e., renewals). The initial, staggered registration periods will range from 6 months to 17 months. Each dental assistant for whom an initial certificate of registration is issued will be assigned a computer-generated check digit. The length of the initial registration period will be according to the assigned check digit as follows:

(1) a dental assistant assigned to check digit 1 will be registered for 6 months;

(2) a dental assistant assigned to check digit 2 will be registered for 7 months;

(3) a dental assistant assigned to check digit 3 will be registered for 8 months;

(4) a dental assistant assigned to check digit 4 will be registered for 9 months;

(5) a dental assistant assigned to check digit 5 will be registered for 11 months;

(6) a dental assistant assigned to check digit 6 will be registered for 12 months;

(7) a dental assistant assigned to check digit 7 will be registered for 13 months;

(8) a dental assistant assigned to check digit 8 will be registered for 14 months;

(9) a dental assistant assigned to check digit 9 will be registered for 15 months; and

(10) a dental assistant assigned to check digit 10 will be registered for 17 months.

(11) Initial dental assistant registration fees will be prorated according to the number of months in the initial registration period.

(d) Subsequent to the initial registration period, a registered dental assistant's annual renewal will occur on the first day of the month that follows the last month of the dental assistant initial registration period.

(1) Approximately 60 days prior to the expiration date of the initial dental assistant registration period, renewal notices will be mailed to all registered dental assistants who have that expiration date.

(2) A dental assistant registered under this section who wishes to renew his or her registration must:

(A) Pay a renewal fee set by Board rule;

(B) Submit proof that the applicant has successfully completed a current course in basic life support; and,

(C) Provide proof of completion of at least six (6) hours of continuing education in the previous registration year.

(i) The continuing education curriculum must cover dental assistant duties.

(ii) The continuing education requirement may be met through self-study, interactive computer courses, or lecture courses as offered or endorsed by continuing education providers listed in §104.2 of this title.

(3) A registration expired for one year or more may not be renewed.

(e) Applications for registration or for renewal of registration must be submitted to the office of the State Board of Dental Examiners.

(f) An application for registration is filed with the State Board of Dental Examiners when it is actually received, date-stamped, and logged-in by the State Board of Dental Examiners along with all required documentation and fees. An incomplete application for registration and fee will be returned to applicant within three working days with an explanation of additional documentation or information needed.

(g) Dental assistants registered under this section must maintain a current mailing address on record with the SBDE.

(h) A dental assistant shall display a current registration certificate in each office where the dental assistant provides services for which registration is required by this chapter. When a dental assistant provides such services at more than one location, a duplicate registration certificate issued by the Board may be displayed. Photocopies are not acceptable. The duplicate may be obtained from the State Board of Dental Examiners for a fee set by the Board.

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 February 3, 2006.

TRD-200600589

Dr. Jim Zukowski, Ed.D.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 475-0972


22 TAC §114.21

The Texas State Board of Dental Examiners (Board) proposes a new §114.21, regarding the requirements for courses and examinations required to obtain dental assistant radiologic certification, to be added to 22 TAC Chapter 114. The section is proposed to enact certain requirements imposed by Senate Bill 610, §9, 79th Legislature, which requires that dental assistants who perform radiologic procedures be certified by the Board.

The language of the section is consistent with the revised statutory language and the recommendations of the Dental Assistant Advisory Committee, which consisted of dentists, dental assistants, dental hygienists, and educators.

Dr. Jim Zukowski, Ed.D., Executive Director of the Texas State Board of Dental Examiners, has determined that for each year of the first five-year period the section is in effect, there will be limited fiscal implications for local or state government as a result of enforcing or administering the section. Those costs will largely be related to the review, approval, and auditing of courses and examinations.

There is no anticipated economic cost to persons who are required to comply with the section as proposed. There is no anticipated local employment impact as a result of enforcing the section as proposed.

Dr. Zukowski, Ed.D., has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcement will be the improvement in the education and capabilities of dental assistants who perform radiographic procedures on patients in the State of Texas.

The fiscal implications for small or large businesses will be minimal or none at all. Therefore, the Board has determined that compliance with the proposed section will not have an adverse economic impact on small businesses when compared to large businesses.

Comments on the proposal may be submitted to Dr. Jim Zukowski, Ed.D., Executive Director, Texas State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701, or by fax at (512) 463-7452. To be considered, all written comments must be received by the Texas State Board of Dental Examiners no later than 30 days from the date that this amended section is published in the Texas Register .

The section is proposed under Texas Government Code §2001.021 et seq., and Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties, and Senate Bill 610, §9, 79th Legislature, which requires the Board to establish rules for the certification of dental assistants who position or expose radiographs.

The proposed section affects Title 3, Subtitle D of the Occupations Code and Title 22, Texas Administrative Code, Chapter 101-125.

§114.21.Requirements for Dental Assistant Registration Courses and Examinations.

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:

(1) "Dental industry professional organization"--any organization, the primary mission of which is to represent and support dentists, dental hygienists, and/or dental assistants;

(2) "Dental Assistant Advisory Committee"--a committee consisting of dental professionals and educators, created by the Board under the authority of Tex. Occ. Code §265.005;

(3) "Jurisprudence"--the body of statutes and regulations pertaining to and governing practice by dental assistants, including relevant portions of the Texas Occupations Code, and the rules enacted by the SBDE.

(b) Any school or program accredited by the Commission on Dental Accreditation of the American Dental Association or any dental industry professional organization may offer a course and examination to fulfill the requirements for dental assistant registration outlined in §114.20 of this chapter, so long as the course and examination are compliant with the requirements of this section, and have been approved by the SBDE.

(c) Courses administered to fulfill the requirements of §114.20 of this chapter must:

(1) Cover all the course objectives outlined by the SBDE and the Dental Assistant Advisory Committee and set forth in §114.22 of this chapter; and,

(2) Comply with other requirements established by the SBDE and the Dental Assistant Advisory Committee.

(d) Course providers administering examinations to fulfill the requirements of §114.20 of this chapter must:

(1) Employ a minimum of 50 questions per examination that adequately cover the course objectives identified by the Dental Assistant Advisory Committee and set forth in §114.22 of this chapter;

(2) Establish a minimum passing score of 70%; and,

(3) Maintain safeguards to ensure the integrity and security of the examinations, their content, and the physical examination environment, as outlined in §114.23 of this chapter.

(e) Any course and examination administered under this section may be offered through self-study, interactive computer courses, or lecture courses, and may be offered through the Internet.

(f) Course and examination approval. A provider seeking approval of a dental assistant course must submit the following materials to the SBDE prior to offering the course:

(1) A complete, signed, and notarized Dental Assistant Course Provider Application, as promulgated by the SBDE;

(2) An application fee in the amount established by the SBDE, payable by check or money order made payable to the State Board of Dental Examiners; and

(3) Documentation pertaining to the course, including:

(A) All course materials to be provided to course attendees;

(B) The complete pool of examination questions to be drawn from;

(C) An examination integrity plan that meets the requirements of §114.23 of this chapter;

(D) A copy of the certificate to be issued on course completion; and,

(E) A copy of the provider's reexamination policy, which notifies course attendees in advance how many reexaminations shall be allowed without retaking the course, the cost of reexamination, and other pertinent information.

(g) Following course approval, the following information must be submitted to the SBDE:

(1) An Internet URL address for a website containing information about the approved course, or, if no such website exists, contact information for the course provider;

(2) A schedule of courses to be offered, including dates, times and locations for each;

(3) Prompt notification of any changes to the published course schedule; and,

(4) Notification of any substantive changes to the course curriculum or materials following SBDE approval. Such changes must be submitted in writing to the SBDE for approval prior to their implementation in the course.

(h) The course provider shall submit to the SBDE, within 30 days of the course and examination completion date:

(1) the name of the course, course location, course instructor(s), and date of completion;

(2) a complete roster of course registrants and their raw examination scores; and,

(3) the ratio of examination passing scores to failing scores.

(i) The course provider shall provide all course registrants with their examination results within 30 days of the completion of the examination.

(j) All course providers are subject to audit by the State Board of Dental Examiners for purposes of ensuring compliance with the requirements of this chapter.

(k) Failure to comply with any of the requirements of this section may result in withdrawal of course approval.

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 February 3, 2006.

TRD-200600590

Dr. Jim Zukowski, Ed.D.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 475-0972


22 TAC §114.22

The Texas State Board of Dental Examiners (Board) proposes a new §114.22, regarding course objectives for courses required to obtain dental assistant radiologic certification, to be added to 22 TAC Chapter 114. The section is proposed to enact certain requirements imposed by Senate Bill 610, §9, 79th Legislature, which requires that dental assistants who perform radiologic procedures be certified by the Board.

The language of the section is consistent with the revised statutory language, and the recommendations of the Dental Assistant Advisory Committee, which consisted of dentists, dental assistants, dental hygienists, and educators.

Dr. Jim Zukowski, Ed.D., Executive Director of the Texas State Board of Dental Examiners, has determined that for each year of the first five-year period the section is in effect, there will be limited fiscal implications for local or state government as a result of enforcing or administering the section. Those costs will be related to the review, approval, and auditing of courses.

There is no anticipated economic cost to persons who are required to comply with the section as proposed. There is no anticipated local employment impact as a result of enforcing the section as proposed.

Dr. Zukowski. Ed.D., has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcement will be the improvement in the education and capabilities of dental assistants who perform radiographic procedures on patients in the State of Texas.

The fiscal implications for small or large businesses will be minimal or none at all. Therefore, the Board has determined that compliance with the proposed section will not have an adverse economic impact on small businesses when compared to large businesses.

Comments on the proposal may be submitted to Dr. Jim Zukowski, Ed.D., Executive Director, Texas State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701, or by fax at (512) 463-7452. To be considered, all written comments must be received by the Texas State Board of Dental Examiners no later than 30 days from the date that this amended section is published in the Texas Register .

The section is proposed under Texas Government Code §2001.021 et seq., and Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties, and Senate Bill 610, §9, 79th Legislature, which requires the Board to establish rules for the certification of dental assistants who position or expose radiographs.

The proposed section affects Title 3, Subtitle D of the Occupations Code and Title 22, Texas Administrative Code, Chapter 101-125.

§114.22.Dental assistant course objectives.

Courses administered to fulfill the requirements of §114.20 of this chapter must cover the course objectives identified by the Dental Assistant Advisory Committee, as set forth in this section.

(1) Radiology. At the end of this course of instruction, the student should be able to:

(A) Apply principles of radiation safety in the operation of radiographic equipment.

(i) Explain factors affecting x-ray production.

(ii) Explain x-ray machine factors that influence radiation safety.

(iii) Identify differences between primary radiation and scattered (secondary) radiation.

(iv) Describe protocol in suspected x-ray machine malfunctions.

(B) Practice safety measures for patient protection.

(i) Explain major cause of unnecessary radiation exposure.

(ii) Identify short and long-term effects of radiation on cells and tissues.

(iii) Identify ways to reduce radiation exposure to patients.

(iv) Explain guidelines to determine frequency of radiation exposure.

(C) Practice safety measures for operator protection.

(i) Explain basic radiation physics and biology related to operator exposure.

(ii) Explain sources of radiation to operators while exposing radiographs.

(iii) Identify safety measures to reduce operator radiation exposure.

(D) Identify and select infection control techniques and barriers to minimize cross-contamination according to ADA/CDC guidelines.

(E) Utilize patient management techniques before, during, and after radiographic exposure.

(i) Address patient concerns regarding radiation exposure.

(ii) Select appropriate patient management techniques for radiographic exposure.

(F) Select appropriate intraoral radiographic technique.

(i) Identify appropriate armamentarium for radiographic techniques.

(ii) Select appropriate film size and film speed.

(iii) Expose radiographs.

(G) Practice infection control procedures for radiographic processing.

(H) Prepare, maintain, and replenish radiographic solutions for manual and automatic processors.

(I) Process exposed intra- and extraoral radiographs manually and with automatic processors.

(i) Identify optimum conditions and procedures for processing radiographs.

(ii) Identify and correct errors related to radiographic processing and improper film handling.

(J) Store film and chemical agents used in radiographic procedures according to regulatory guidelines.

(K) Dispose of all chemical agents and other materials used in dental radiographic procedures.

(L) Mount radiographs using facial view.

(i) Identify anatomical landmarks to aid in correct mounting.

(ii) Match specific tooth views to specified tooth mount windows.

(iii) Utilize optimum viewing techniques.

(iv) Label the radiographic mount appropriately.

(M) Identify anatomical structures, dental materials and patient characteristics observed on radiographs.

(N) Evaluate radiographs for diagnostic value.

(i) Identify diagnostically acceptable radiographs.

(ii) Identify and correct causes of errors on intraoral radiographs.

(O) Understand basic principles of extraoral radiology.

(P) Select the appropriate film and equipment.

(Q) Prepare patient for exposure.

(R) Expose extraoral radiographs.

(S) Identify and correct causes of errors on extraoral radiographs.

(T) Explain the concept of digital radiography.

(U) Select appropriate equipment.

(V) Expose digital radiographs.

(W) Identify and correct causes of errors on digital radiographs.

(X) Utilize quality assurance procedures in the dental office for radiographic procedures.

(Y) Prepare radiographs to comply with legal requirements for viewing and duplication.

(i) Explain methods for duplicating radiographs.

(ii) Explain reasons for exposing and retaining radiographs.

(Z) Comply with HIPAA/Patient Privacy Rules and Regulations

(2) Infection control. At the end of this course of instruction, the student should be able to:

(A) Follow standards and guidelines of occupational safety for dental office personnel.

(i) Utilize regulations in the OSHA/CDC Bloodborne Pathogens Standard.

(ii) Utilize regulations in the OSHA/CDC Hazard Communication Standard.

(B) Identify infectious diseases in the dental setting and available immunizations.

(C) Prevent cross-contamination and disease transmission in the dental setting.

(i) Perform proper hand washing.

(ii) Use disposable items whenever possible.

(iii) Utilize barrier techniques and personal protective equipment (PPE).

(D) Perform disinfection procedures.

(i) Select appropriate PPE.

(ii) Select, prepare and use chemical agents following manufacturer's directions.

(iii) Prepare surfaces for disinfection.

(iv) Disinfect the treatment room, darkroom, instrument processing area and all associated equipment.

(E) Perform sterilization procedures.

(i) Select appropriate PPE.

(ii) Prepare dental instruments and equipment for sterilization.

(iii) Apply appropriate method for sterilization of dental instruments, equipment and supplies.

(iv) Label and store all instruments properly.

(v) Monitor effectiveness of sterilization process for dental instruments, equipment and supplies.

(F) Maintain infection control of dental unit and equipment.

(G) Practice safety measures when handling all hazardous materials.

(i) Identify and dispose of biohazardous waste.

(ii) Identify and dispose of non-regulated waste.

(iii) Identify and manage potential chemical and physical hazards in accordance with MSDS sheets.

(H) Practice infection control in handling and transporting dental items.

(i) Select appropriate PPE.

(ii) Identify conditions for potential cross-contamination.

(iii) Select and apply appropriate disinfectant.

(iv) Label biohazardous material.

(I) Utilize and maintain a quality assurance program for infection control throughout the dental setting.

(3) Jurisprudence. At the end of this course of instruction, the student should be able to:

(A) State the mission, philosophy and composition of the State Board of Dental Examiners.

(B) Differentiate between the Texas Occupations Code and the rules of the State Board of Dental Examiners.

(C) Comply with Texas law as mandated in the Texas Occupations Code, 79th Legislature, 2005, as it relates to dental assistant duties.

(D) Comply with the rules of the State Board of Dental Examiners as they relate to dental assistant duties.

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 February 3, 2006.

TRD-200600591

Dr. Jim Zukowski, Ed.D.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 475-0972


22 TAC §114.23

The Texas State Board of Dental Examiners (Board) proposes a new §114.23, regarding the security and integrity of examinations required to obtain dental assistant radiologic certification, to be added to 22 TAC Chapter 114. The section is proposed to enact certain requirements imposed by Senate Bill 610, §9, 79th Legislature, which requires that dental assistants who perform radiologic procedures be certified by the Board.

The language of the section is consistent with the revised statutory language, and the recommendations of the Dental Assistant Advisory Committee, which consisted of dentists, dental assistants, dental hygienists, and educators.

Dr. Jim Zukowski, Ed.D., Executive Director of the Texas State Board of Dental Examiners, has determined that for each year of the first five-year period the section is in effect, there will be limited fiscal implications for local or state government as a result of enforcing or administering the section. Those costs will largely be related to the review, approval, and auditing of courses and examinations.

There is no anticipated economic cost to persons who are required to comply with the section as proposed. There is no anticipated local employment impact as a result of enforcing the section as proposed.

Dr. Zukowski has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcement will be the improvement in the education and capabilities of dental assistants who perform radiographic procedures on patients in the State of Texas.

The fiscal implications for small or large businesses will be minimal or none at all. Therefore, the Board has determined that compliance with the proposed section will not have an adverse economic impact on small businesses when compared to large businesses.

Comments on the proposal may be submitted to Dr. Jim Zukowski, Ed.D., Executive Director, Texas State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701, or by fax at (512) 463-7452. To be considered, all written comments must be received by the Texas State Board of Dental Examiners no later than 30 days from the date that this amended section is published in the Texas Register .

The section is proposed under Texas Government Code §2001.021 et seq., and Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties, and Senate Bill 610, §9, 79th Legislature, which requires the Board to establish rules for the certification of dental assistants who position or expose radiographs.

The proposed section affects Title 3, Subtitle D of the Occupations Code and Title 22, Texas Administrative Code, Chapter 101-125.

§114.23.Dental Assistant Examination Integrity.

(a) Course providers shall employ reasonable methods to ensure the integrity of examinations administered under this chapter, including, but not limited to:

(1) Employing at least three (3) forms of each examination, with substantially distinct selection and ordering of questions;

(2) Utilizing a pool of examination questions sufficiently large to comply with the requirements of this section;

(3) Allowing examinees a reasonable and appropriate maximum amount of time to complete an examination; and,

(4) Securing the pool of examination questions, actual examinations, and any other source of specific examination data.

(b) Course providers shall establish and maintain a physical environment for examinations to ensure the accessibility, integrity, and security of examinations administered under this chapter, including, but not limited to:

(1) Uninterrupted proctoring of the examination site;

(2) A distribution of distinct forms of the examinations that limits the potential for examination item compromise;

(3) Prohibiting the use of books, notes, or other reference aids, and taking reasonable steps to prevent access to impermissible assistance;

(4) Removal of teaching aids and posters from areas accessible to examinees;

(5) Providing reasonable accommodations for examinees with disabilities;

(6) Requiring examinees to sign a statement of confidentiality with respect to disclosure of information on the examination;

(7) Verified identification of students and examinees; and,

(8) Enforcement of reasonable policies regarding issues including, but not limited to, noise, illness, and breaks.

(c) In addition to the foregoing requirements, course providers shall employ reasonable methods to ensure accessibility, integrity, and security of Internet- or intranet-based examinations administered under this chapter, including, but not limited to:

(1) Identification of each examinee via a unique login and the use of periodic security questions that should reasonably confirm the examinee's identity;

(2) Maintaining the security of student information;

(3) Maintaining a comprehensive student and examinee database;

(4) Imposing time limits for inactivity during examinations;

(5) Imposing reasonable and equitable maximum time limits for completion of examinations;

(6) Disabling access to other websites, software, or data during examinations;

(7) Disabling the ability to print or otherwise copy examination items; and,

(8) Providing reasonable accommodations for examinees with disabilities.

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 February 3, 2006.

TRD-200600592

Dr. Jim Zukowski, Ed.D.

Executive Director

State Board of Dental Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 475-0972


Part 11. BOARD OF NURSE EXAMINERS

Chapter 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §§217.2, 217.4, 217.5

The Board of Nurse Examiners proposes amendments to 22 TAC §§217.2(a)(5), 217.4(a)(5), and 217.5(a)(4) and (7) pertaining to Licensure, Peer Assistance and Practice. Sections 217.2(a)(5), 217.4(a)(5) and 217.5(a)(7) address criminal background checks for Licensed Vocational Nurses and §217.5(a)(4) addresses credential evaluation services (CES) of foreign-educated nurses.

Licensed Vocational Nurses' Criminal Background Checks

Texas Government Code §411.125(a) was amended by the 2003 legislative session (HB 2208) to read as follows: (a) The Board of Nurse Examiners is entitled to obtain from the department (Department of Public Safety) criminal history record information maintained by the department that relates to a person who: (1) is an applicant for or the holder of a license issued by the board; (2) has requested a determination of eligibility for a license from the board; or (3) is subject to investigation by the board in connection with a complaint or formal charge against the person.

Though this provision granted the board the authority to require criminal background checks, the funding for criminal backgrounds for LVN applicants and licensees was not provided until the 79th Regular legislative session (2005). The Board began performing criminal background checks on LVNs and LVN applicants in November 2005. These rule amendments are proposed to implement the statute and update the licensure requirements for LVN applicants and licensees. (Registered nurse applicants began submitting fingerprint cards for FBI criminal background checks following the 2003 legislative session. All present RN and LVN licensees are being audited over a ten year period upon renewing their licenses.)

Credentialing Services of Foreign-Educated Nurses

The Staff requests that the board broaden the acceptable verification organizations and availability of organizations that can provide credential evaluation services (CES) of foreign-educated nurses to provide consistency with the existing rule pertaining to graduates of nursing programs outside of the United States' jurisdiction which is contained in section 217.4. The board originally approved the addition of these additional credentialing services for foreign-educated nurses in the January 2005 board meeting. The pertinent subsections of rule 217.4 (Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction) are 217.4(a)(1)(B) and 217.4(a)(2) as follows:

(a) Nurse applicants for initial licensure applying under this section.

(1) A licensed vocational nurse applicant must:

(B) have successfully completed an approved program for educating vocational/practical (second level general nurses) nurses or curriculum content comparable to the Texas curriculum requirements for graduates of approved vocational nursing education programs by providing a Credential Evaluation Service Full Education Course-by-Course Report from the Commission on Graduates of Foreign Nursing Schools (CGFNS), Educational Records Evaluation Service (ERES), or the International Education Research Foundation (IERF) ; and

(2) A registered nurse applicant must provide a Credential Evaluation Service Full Education Course-by-Course Report from the Commission on Graduates of Foreign Nursing Schools (CGFNS), Educational Records Evaluation Service (ERES), or the International Education Research Foundation (IERF) and an English proficiency test acceptable to the Board, or the equivalent which verifies that the applicant:

Prior to April 2005, the Texas Board had historically used only the Commission on Graduates of Foreign Nursing Schools (CGFNS), but the waiting period for the credentialing services began to take longer over time. In order to provide equal service and quicker time periods for processing, the Board approved the addition of these two organizations for the provision of credentialing service for nurses educated outside U.S. jurisdictions -- Educational Records Evaluation Service (ERES) and the International Education Research Foundation (IERF). To provide consistency within the rules, the requirements in §217.5 need to be updated to reflect the requirements of §217.4.

Katherine Thomas, executive director, has determined that for the first five-year period the proposed amendments are adopted there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments as the amendments implement existing statute.

Katherine Thomas, executive director, has determined that for each year of the first five years the proposed amendments are adopted, the public benefit will be that the amendments will provide greater protection for the public and consistency with existing rules. There will not be any foreseeable effect on small businesses. The anticipated cost to affected individuals as a result of this proposed adoption is the cost incurred for the criminal background checks.

Written comments on the proposal may be submitted to Katherine A. Thomas, MN, RN, Executive Director, Board of Nurse Examiners, 333 Guadalupe, Suite 3-460, Austin, Texas 78701.

The proposed amendments are pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

This proposal will implement Texas Government Code §411.125.

§217.2.Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions.

(a) All applicants for initial licensure by examination shall:

(1) - (4) (No change.)

(5) [ Registered nurse applicants must ] submit FBI fingerprint cards provided by the Board for a complete criminal background check;

(b) - (f) (No change.)

§217.4.Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction.

(a) Nurse applicants for initial licensure applying under this section.

(1) - (4) (No change.)

(5) all [ registered ] nurse applicants must submit FBI fingerprint cards provided by the Board for a complete criminal background check.

(b) - (e) (No change.)

§217.5.Temporary License and Endorsement.

(a) The requirements to obtain a non-renewable temporary license which is valid for 120 days, or a permanent license for endorsement are as follows:

(1) - (3) (No change.)

(4) For an applicant who has graduated from a nursing education program outside of the United States or National Council jurisdictions--verification of LVN licensure as required in §217.4(a)(1) or verification of RN licensure must be submitted from their country of education or as evidenced in a Credential Evaluation Service (CES) Full Education Course-by-Course Report from the Commission on Graduates of Foreign Nursing Schools (CGFNS), Educational Records Evaluation Service (ERES), or the International Education Research Foundation (IERF), [ evidence of completion of CGFNS requirements, ] as well as meeting all other requirements in paragraphs (2)-(3) of this subsection.

(5) - (6) (No change.)

(7) [ RN ] applicants must submit FBI fingerprint cards provided by the Board for a complete criminal background check.

(b) - (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 February 1, 2006.

TRD-200600552

Katherine Thomas

Executive Director

Board of Nurse Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 305-6823


22 TAC §217.16

The Board of Nurse Examiners proposes amendments to 22 TAC §217.16 pertaining to Licensure, Peer Assistance and Practice. Section 217.16 specifically addresses the minor incident rule contained in Texas Occupations Code §301.419 and addressed in §301.401.

The Minor Incident Rule has existed since 1994 but is still misinterpreted as a "3-strikes and the nurse is out" rule. The intent of the Minor Incident Rule is to promote identification of a potential pattern of poor practice by a given nurse, and to establish when this nurse's practice must be reviewed by a group of peers to determine appropriate actions. Though focused on the nurse's practice, peer review may include recommendations for both the nurse (individual practice) and the employing facility (systems issues).

It is not uncommon for the Board to encounter a list of on-going practice-related errors preceding a serious incident that serves as the "last straw," resulting in a nurse being reported to the Board. Rarely has the nurse in such a scenario been "remediated" by the facility or nurse manager for the previous collection of practice-related errors. Had the nurse's practice been reviewed by a facility's peer review committee at an earlier stage in the process, perhaps corrective actions could have been initiated at the facility/employer level prior to more serious practice errors occurring. Timely and pre-emptive actions would serve to protect the public, and may spare the nurse being reported to the Board unnecessarily.

The Board charged the Nursing Practice Advisory Committee (NPAC) with the revision of the Minor Incident Rule in October 2005. NPAC discussed concerns and suggestions from external stakeholders and groups regarding the ongoing perception that peer review of minor incidents is perceived as "punitive" rather than "remedial" in nature. As a result, NPAC agreed that a paradigm shift would be helpful. Specifically, a nurse should not be reported to the Board unless certain criteria are met.

Katherine Thomas, Executive Director, has determined that for the first five-year period the proposed amendments are in effect there will be no known fiscal implications for state or local government as a result of implementing the proposed amendments.

Ms. Thomas also has determined that for each year of the first five years the proposed amendments are in effect the public benefit should be clarity in the rule as well as to encourage facilities and employers to focus on early remediation versus late punishment for practice-related errors. Protection of the public may be further enhanced with this shift in approach to minor incidents. There will not be any foreseeable effect on small businesses. There is no anticipated cost to affected individuals as a result of this proposal.

Written comments on the proposal may be submitted to Katherine A. Thomas, MN, RN, Executive Director, Board of Nurse Examiners, 333 Guadalupe, Suite 3-460, Austin, Texas 78701.

The amendments are proposed pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

This proposal will affect Texas Occupations Code §301.401 and §301.419.

§217.16.Minor Incidents.

(a) Purpose. The Board believes protection of the public is not enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act. This is particularly true when there are mechanisms in place in the nurse's practice setting to identify nursing errors, detect patterns of practice, and take corrective action to [ , ] remediate deficits in a nurse's judgment, knowledge, training, or skill [ and detect patterns of behavior ]. This rule is intended to clarify both what constitutes a minor incident and when a minor incident need not be reported to the board.

(b) Definition and Scope. A "minor incident" is defined by Texas Occupations Code §301.419(a) as "conduct that does not indicate that the continuing practice of nursing by an affected nurse poses a risk of harm to a client or other person." [ A nurse involved in an incident which is determined to be minor need not be reported to the Board or the Peer Review Committee if all of the following factors exist: ]

[(1) the potential risk of physical, emotional or financial harm to the client due to the incident is very low;]

[(2) the incident is a singular event with no pattern indicating the nurse's continuing practice would pose a risk of harm to clients or others;]

[(3) the nurse exhibits a conscientious approach to and accountability for his/her practice; and]

[(4) the nurse appears to have the knowledge and skill to practice safely.]

(c) Exclusions. The following conduct shall not be deemed a minor incident under any circumstance:

(1) An error that contributed to a patient's death or serious harm.

(2) Criminal Conduct defined in Texas Occupations Code §301.4535.

(3) A serious violation of the board's Unprofessional Conduct Rule (22 TAC §217.12) involving intentional or unethical conduct such as fraud, theft, patient abuse or patient exploitation.

(d) Criteria for Determining If Minor Incident Is Board-Reportable.

(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct:

(A) creates a significant risk of physical, emotional or financial harm to the client;

(B) indicates the nurse lacks a conscientious approach to or accountability for his/her practice;

(C) indicates the nurse lacks the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or

(D) indicates a pattern of multiple minor incidents demonstrating that the nurse's continued practice would pose a potential risk of harm to clients or others.

(2) Evaluation of Multiple Incidents

(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of behavior that demonstrates the nurse's continued practice poses a risk and should be reported.

(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse shall be reported to peer review if a nurse commits five minor incidents within a 12 month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period shall be reported to the Board.

(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of behavior that poses a risk of harm, the nurse should be reported to the Board or Peer Review Committee.

(e) Special Considerations in Evaluating Incidents. In evaluating whether a nurse's conduct constitutes a minor incident or should be reported to the Board, the following should be considered:

(1) If an incident is primarily the result of factors beyond the nurse's control and addressing those factors is more likely to prevent the incident from reoccurring, a presumption should exist that the incident is a non-reportable minor incident.

(2) Multiple factors may contribute to medication errors. For the purposes of this rule, a medication error should be evaluated to determine whether the error resulted from failure of the nurse to exercise proper clinical judgment or if there were other extraneous factors that were the primary cause of the error. Board Position Statement 15.17 provides guidelines for evaluating medication errors.

(f) Documentation of Minor Incidents. A minor incident should be documented as follows:

(1) a report shall be prepared and maintained for 12 months that contains a complete description of the incident, patient record number, witnesses, nurse involved and the action taken to correct or remedy the problem;

(2) if a medication error is attributable or assigned to the nurse as a minor incident, the record of that incident should indicate why the error is being attributed or assigned to the nurse.

(g) Nursing Peer Review Committee.

(1) A peer review committee receiving a report involving a minor incident or incidents shall review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continuing to practice poses a risk of harm to clients or other persons and whether remediation would be reasonably expected to adequately mitigate such risk if it exists. The committee shall consider the special considerations set out in subsection (d) of this section.

(2) Regardless of the number of incidents, the facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee. Peer review of minor incidents under this Rule may be conducted by a special workgroup of the nursing peer review committee. The workgroup may conduct its review using an informal process as long as the nurse has the opportunity to meet with the workgroup and provided the nurse is given an opportunity to be peer reviewed in accordance with §217.19 of this title (relating to Incident-Based Nursing Peer Review) prior to any report being made to the Board.

(3) If the peer review committee determines either that the nurse's continuing to practice does not pose a risk of harm to clients or other persons or that remediation could reasonably be expected to adequately mitigate any such risk, the committee need not report the nurse to the Board provided any remediation is successfully completed.

(h) A Right to Report. Nurses and other persons are encouraged not to report minor incidents to the Board unless required to do so by this rule, but nothing in this rule is intended to prevent reporting of a potential violation directly to the Board.

(i) Bad Faith Determination. Intentionally misclassifying an incident in bad faith to avoid reporting may result in violation of the mandatory reporting statute.

(j) Chief Nursing Officer's Responsibility. The chief nursing officer shall be responsible for taking reasonable steps to assure that minor incidents are handled in compliance with this rule.

[(c) Other factors which may be considered in determining whether a minor incident should be reported to the Board are:]

[(1) the significance of the nurse's conduct in the particular practice setting; and]

[(2) the presence of contributing or mitigating circumstances, including systems issues, in relation to the nurse's conduct.]

[(d) A single minor incident need not be reported to the Board or the Peer Review Committee. When a decision is made that the incident is minor, the following steps are required:]

[(1) an incident/variance report shall be completed according to the facility's policy;]

[(2) a record shall be maintained of each minor incident;]

[(3) the incident/variance report shall contain a complete description of the incident, patient record number, witnesses, nurse involved, and the action taken to correct or remedy the problem;]

[(4) In practice settings where a Peer Review Committee exists, the nurse manager or supervisor shall report a nurse to the Peer Review Committee if three minor incidents involving the nurse are documented within a one-year (any 12 consecutive month) time period; and]

[(5) the Peer Review Committee shall review the three minor incidents and make a determination as to whether a report to the Board is warranted in accordance with Texas Occupations Code Annotated §301.403 (NPA). The committee need not report to the Board when they determine that:]

[(A) The nurse's actions in the three incidents considered together continue to meet the criteria of subsection (b)(1) - (4) of this section, relating to criteria for "minor incidents; and]

[(B) the committee determines remediation and monitoring of the nurse's knowledge and/or skills can be accomplished without referral to the Board.]

[(6) If additional practice related errors are committed by the nurse after peer review is conducted, the information on the first three errors shall be given new consideration in combination with subsequent incidents occurring after this initial review process.]

[(7) In practice settings where no Peer Review Committee exists, the nurse manager or supervisor shall review minor incidents involving those nurses under his/her supervision and keep the same reports as required in paragraphs (1) - (3) of this subsection. A nurse manager or supervisor shall report any nurse involved in three minor incidents within one year to the Board.]

[(e) Nothing in this rule is intended to prevent reporting of a potential violation directly to the Board.]

[(f) Failure to classify an event appropriately in order to avoid reporting may result in violation of the mandatory reporting statute.]

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 February 1, 2006.

TRD-200600553

Katherine Thomas

Executive Director

Board of Nurse Examiners

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 305-6823