Part 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS

Chapter 1. ARCHITECTS

Subchapter C. EXAMINATION

22 TAC §1.52

The Texas Board of Architectural Examiners proposes an amendment to §1.52, concerning a scholarship awarded to eligible architectural candidates to help defray the costs of the architectural registration examination pursuant to §1051.653, Texas Occupations Code Annotated. The reason for the amendment is to limit the scholarship to those who are more clearly established as Texas residents and require candidates to apply for the scholarship within a reasonable time after passing the examination. The amendment limits the scholarship to candidates who have passed the architectural registration examination within 12 months prior to applying for the scholarship. There are also technical amendments made to update a statutory cross-reference and maintain consistent references to the board. Section 1.52 limits eligibility for the scholarship to those who have resided in Texas for 12 months. As amended, eligibility would be restricted to those who have resided in Texas for 18 months. As amended, the effect of the rule would be to ensure a greater likelihood that scholarship recipients actually reside in Texas. The time limit on applying for the award would be to ensure the scholarship will more likely be awarded to those who have an immediate financial need for it.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no impact on local government. There will be no significant fiscal impact on state government.

Ms. Hendricks has also determined that for each year of the first five-years the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: the revenue raised from Texas architects will more likely remain in Texas paid to Texas candidates and the scholarship will more likely be awarded to those who have a more pressing financial need. The rule will have no impact on small business. There will be no change in the cost to persons required to comply with the section.

Comments may be submitted to Cathy L. Hendricks, RID/ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, Texas 78711-2337.

The amendment is proposed pursuant to §1051.202 and §1051.653 of Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to adopt rules to administer and enforce its enabling legislation and to administer the award of scholarships, respectively.

The proposed amended rule will not affect other statutes.

§1.52.Financial Assistance to ARE Candidates.

(a) The fund established by the 76th Texas Legislature to provide financial assistance to Texas ARE Candidates shall be administered by the Board or, if authorized by law, by an independent scholarship administrator approved by the Board. As mandated by §1051.653 of the Texas Occupations Code [Section 7A of the Architects' Registration Law], the Architect Registration Examination Financial Assistance Fund (AREFAF) shall be funded by a mandatory fee from all Texas registered Architects.

(b) A one-time maximum award of $500 shall be awarded to each approved applicant. Each scholarship recipient shall meet the following criteria:

(1) Each scholarship recipient shall be a Texas resident who has resided in Texas for at least 18 [twelve (12)] months immediately preceding the date the recipient submitted his or her application for the AREFAF award;

(2) Each scholarship recipient shall be a Candidate in good standing or shall be an Architect who completed the ARE during the 12-month period immediately preceding the date of application for the AREFAF award [after September 1, 1999];

(3) - (4) (No change.)

(c) The Board shall not award an AREFAF scholarship to any of the following persons:

(1) (No change.)

(2) any employee of the Board [TBAE];

(3) - (5) (No change.)

(d) - (e) (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 March 9, 2007.

TRD-200700932

Cathy L. Hendricks, RID/ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 305-8544

22 TAC §1.212

The Texas Board of Architectural Examiners proposes an amendment to §1.212 for Title 22, Chapter 1, Subchapter K, pertaining to the services of a prime design professional in the design of certain publicly owned buildings. Section 1051.703(a), Texas Occupations Code Annotated, requires an architect to prepare the architectural plans and specifications for certain buildings owned by the state or a political subdivision of the state. Section 1051.703(b), Texas Occupations Code Annotated, reads "this section does not prohibit an owner of a building from choosing an architect or engineer as the prime design professional for a building construction, alteration, or addition project." The reason for the rule is to clarify that a person selected to serve as a prime design professional is not thereby permitted to practice outside the scope of his or her licensed profession in rendering architectural services on the projects listed in §1051.703(a). The effect expected if the proposed rule is adopted is to ensure that architects and engineers do not attempt practice each other's profession as the result of being selected as the prime design professional by a client.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact on state or local government resulting from the amended rule.

Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: publicly owned buildings will more likely be designed by those who are practicing within the profession for which they have been licensed thus ensuring that the buildings will be safer and more efficient. The rule will have no impact on small business. There will be no change in the cost to persons required to comply with the section.

Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.

The new rule is proposed pursuant to §1051.202 and §1051.208, of Texas Occupations Code Annotated which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to the standards of the practice of architecture and prohibitions upon the unlicensed practice of architecture and which require architectural plans and specifications for certain publicly owned buildings to be prepared by an architect. The proposed amended rule does not affect other statutes.

§1.212.Publicly Owned Buildings.

(a) - (b) (No change.)

(c) For purposes of §1051.703(b), of the Texas Occupations Code, designation as the "prime design professional" does not expand, limit, or otherwise alter the scope of a design professional's practice nor does it allow a design professional to fulfill the requirements of §1051.703(a) of the Texas Occupations Code.

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 March 9, 2007.

TRD-200700928

Cathy L. Hendricks, RID/ASID/IIDA

Executive Director

Texas Board of Architectural Examiners

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 305-8544

Chapter 75. RULES OF PRACTICE

22 TAC §75.2

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to §75.2, relating to proper diligence and efficient practice of chiropractic, to specify that patient abandonment is an example of a lack of due diligence. In response to an inquiry from the public, the Board has decided to make this amendment so that doctors of chiropractic, patients, and the public are clearly on notice that a doctor of chiropractic cannot simply close their practice without reasonable cause without providing notice to their patients and for the orderly transfer of the patient's records.

In drafting this rule, the Board looked to the Texas Medical Board's rule at 22 TAC §165.5, relating to transfer and disposal of medical records, and State Board of Dental Examiners' rule at 22 TAC §108.5, relating to patient abandonment.

Glenn Parker, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no additional cost to state or local governments as a result of enforcing or administering the new section.

Mr. Parker also determined the for each year of the first five-year period the amendment is in effect the public benefit will be clearer standards and accountability for patient abandonment. Mr. Parker has determined that here will be no economic costs to persons who are required to comply with the amendment. There will be no effect to small or micro businesses.

Comments on the proposed amendment may be submitted to Glenn Parker, Executive Director, Texas State Board of Chiropractic Examiners, 333 Guadalupe St. Tower III Suite 825, Austin, TX 78701, (512) 305-6705 fax, no later than 30 days from the date that this amendment is published in the Texas Register.

The amendment is proposed under the Texas Occupations Code, §201.152, relating to rules, which authorizes the Board to adopt rules necessary to regulate the practice of chiropractic.

No other statutes, articles, or codes are affected by the proposed rule.

§75.2.Proper Diligence and Efficient Practice of Chiropractic.

(a) A lack of proper diligence in the practice of chiropractic or the gross inefficient practice of chiropractic when applied to a licensee or chiropractic facility includes but is not limited to the following:

(1) failing to conform to the minimal acceptable standards of practice of chiropractic, regardless of whether or not actual injury to any person was sustained, including, but not limited to:

(A) failing to assess and evaluate a patient's status;

(B) performing or attempting to perform procedures in which the chiropractor is untrained by education or experience;

(C) delegating chiropractic functions or responsibilities to an individual lacking the ability or knowledge to perform the function or responsibility in question; [or]

(D) causing, permitting, or allowing physical injury to a patient or impairment of the dignity or the safety of a patient or;

(E) abandoning patients without reasonable cause and without giving a patient adequate notice and the opportunity to obtain the services of another chiropractor and without providing for the orderly transfer of a patient's records.

(2) failing to provide direct supervision of students or other persons as required by §80.1 of this title (relating to Delegation of Authority) or §78.1 of this title (relating to Registration of Chiropractic Radiologic Technologists).

(b) Conduct enumerated in subsection (a) of this section may also constitute, under appropriate circumstances, violations of other provisions of the Chiropractic Act or other board rules, including but not limited to those which prohibit grossly unprofessional conduct or dishonorable conduct.

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 March 6, 2007.

TRD-200700868

Glenn Parker

Executive Director

Texas Board of Chiropractic Examiners

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 305-6901

Chapter 329. LICENSING PROCEDURE

22 TAC §329.5

The Texas Board of Physical Therapy Examiners proposes amendments to §329.5, concerning Licensing Procedures for Foreign-trained Applicants. The amendment corrects a statement regarding the waiver of the TOEFL test requirements for certain applicants by adding a category that was inadvertently excluded. The TOEFL test requirement is also waived for graduates of foreign entry-level physical therapy programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) at time of graduation.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, 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 as a result of enforcing or administering the rule.

Mr. Maline 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 rule will be the greater availability of therapists to treat the people of Texas. There will be no effect on small businesses, and no economic cost to persons having to comply is anticipated.

Comments on the proposed amendment may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us.

The amendment is proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 453, Occupations Code is affected by this amendment.

§329.5.Licensing Procedures for Foreign-Trained Applicants.

(a) The provisions of §329.1 of this title (relating to General Licensing Procedure) apply to foreign-trained applicants.

(b) If required by §343 of the U.S. Illegal Immigration Reform and Immigrant Responsibility Act, the foreign-trained applicant must present a prescreening certificate issued by a board-approved prescreening entity. The board will establish by policy a list of board-approved prescreening entities, which will be made available to foreign-trained applicants on request.

(c) The foreign-trained applicant's educational credentials and qualifications will be evaluated by a board-approved credentialing entity in accordance with the requirements of subsection (f) of this section. The board will establish by policy a list of approved credentialing entities. In the event that the credentialer does not adhere to the guidelines of subsection (f) of this section, the Board may override the evaluation. An evaluation by a board-approved education credentialing entity is valid for the purpose of licensing in this state for not more than two years after the date of issuance of the evaluation.

(d) After arrival in the United States, the applicant must submit a United States residential address and pay all remaining fees. Only after the applicant has arrived in the United States will the board approve registration for the national exam.

(e) Designated representative letter.

(1) An applicant may designate a person as a representative by providing in writing to the board the name, telephone number, and address of the person and by stating in the letter that the person will be the designated representative for the applicant.

(2) This letter must be notarized by a notary of the country in which the applicant resides and sent directly to the board. A copy should be sent to the representative by the applicant.

(3) A designated representative may obtain confidential information regarding the application.

(4) A designated representative of an applicant will remain so until the applicant receives his permanent license or until the board is notified in writing by the applicant that the designated representative has been eliminated or replaced. An applicant may have only one designated representative at any time.

(5) The designated representative is not required by the board to have power of attorney for the applicant. A person who does have power of attorney for an applicant may not submit any document that is required by the board to be signed by the applicant and notarized. Documents submitted by a person with power of attorney for the applicant must be submitted in accordance with all requirements set by the Act and rules regarding these documents. Any falsification of documents required for licensing submitted by a designated representative or a person with power of attorney for the applicant may result in denial of license or other penalties to the applicant.

(f) Guidelines for board-approved education credentialing entities.

(1) The credentialing entity will review all of an applicant's post-secondary professional education credentials earned outside of the United States. The entity will evaluate allowable transfer credit for the 13th year based on recommendations of the National Council on the Evaluation of Educational Credentials or on current published reference materials. The applicant must have completed, with a passing grade of A, B, C, Pass or Credit, 60 semester hours credit or the equivalent in general education courses from an accredited institution of higher learning. This requirement may be met by credits earned at U.S. colleges or universities, by College Level Examination Program (CLEP) credits, or Advanced Placement (AP) according to standards of the American Council on Education. The number of credits earned by CLEP or AP may not exceed 12 semester credits.

(2) The credentialing entity must attest that the institution attended by the applicant has the recognition of the Ministry of Education or the equivalent in that country.

(3) All foreign-trained applicants must demonstrate the ability to communicate in English by making the minimum score accepted by the board on the TOEFL tests. This requirement is waived for graduates of entry-level physical therapy programs in Australia, Canada (except Quebec), Ireland, New Zealand and the United Kingdom, and for graduates of entry-level programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) at time of graduation . For graduates of entry-level physical therapy programs in other foreign countries, the Board may grant an exception to the TOEFL tests if the applicant holds a current license in physical therapy in another state and has been licensed in the U.S. for 10 years prior to application. The Board also may grant an exception to the TOEFL tests to an applicant who submits satisfactory proof that he/she is a citizen or lawful permanent resident of the United States, and has attended four or more years of secondary or post-secondary education in the U.S. Regarding the Paper-based and Computer-based TOEFL tests: If an applicant makes a score of 50 on the TSE, the board will allow the applicant to submit three original, notarized letters of recommendation from individuals who have practical knowledge of the applicant's ability to communicate successfully in spoken English. Individuals who provide this written testimony must be native English speakers, cannot be related by blood or marriage to the applicant, and at least one of the letters must be from a PT licensed to practice in Texas. These letters must be submitted by their authors directly to the board. At the board's discretion, the letters may be considered satisfactory evidence of proficiency in spoken English. Minimum acceptable scores for the TOEFL tests are as follow:

(A) Paper based TOEFL tests (pbt): TOEFL (reading/comprehension) 580; TWE (writing/essay) 5.0; TSE (speaking) 55.

(B) Computer-based TOEFL tests (cbt): TOEFL (reading/comprehension) 237; TWE (writing/essay) 5.0; TSE (speaking) 55.

(C) Internet-based (ibt): Writing 24; Speaking 26; Reading Comprehension 21; Listening Comprehension 18.

(4) The credentialing entity must attest that the applicant is or was licensed or authorized to practice in the country in which the entry-level degree in physical therapy was granted. If there is no licensure or authorization in such country, the applicant must be eligible for unrestricted practice there. The Board may waive this requirement for an applicant who is not licensed in the country of education due to a citizenship requirement of that country.

(A) If the application is by examination, the license or authorization in such country must be in good standing and the licensure current.

(B) If the application is by endorsement, and the applicant has passed the exam according to Texas standards, the license or other authorization must have been in good standing at the time the license or authorization in such country expired.

(5) The credentialing entity adopts the policy of "scaling" as defined by the National Council on the Evaluation of Foreign Educational Credentials, American Association of Collegiate Registrar and Admissions Officers, Washington D.C.; i.e., a year of foreign study is worth no more than a year of American study, regardless of contact hours, or general education is converted to equate to approximately 30-32 United States semester credit hours per year, and professional education to approximately 36 semester credit hours per year.

(6) The credentialing entity must use a method to convert classroom hours to semester units which has a ratio no greater than the following: 15 contact lecture hours = one semester unit/hour; 45 contact laboratory hours = one semester unit/hour. When lecture/lab hours are not delineated on the transcript or syllabi, the evaluator may use an appropriate ratio and indicate the ratio used in the evaluation.

(7) The credentialing entity must list and assign a grade for each course taken by the applicant, by assigning the grade of A, B, C, D, F, Pass, Fail, Credit or No Credit. Those grades assigned by the credentialing entity must be the grades that are converted to the U.S. equivalent, in accordance with the most current version of the National Association for Foreign Student Affairs Handbook on the Placement of Foreign Graduate Students. The credentialing entity must identify and list those courses which would not transfer to the U.S. as a C or above or Pass or Credit in accordance with the most current version of the National Association for Foreign Student Affairs Handbook on the Placement of Foreign Graduate Students. An applicant must earn a grade of A, B, C, or Pass or Credit in any professional physical therapy education courses. An applicant with a grade of D, F, Fail, or no credit appearing for a professional physical therapy education course on his/her evaluation who has not successfully retaken the course with a grade of A, B, C, Pass or Credit is not eligible for licensure in Texas.

(8) The credentialing entity must attest that the applicant has successfully completed an educational program substantially equivalent to U.S. programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) and has earned the equivalent of a minimum of 72 semester hours of professional physical therapy education. The program must be post-secondary, requiring for entry the equivalent of high school graduation in the United States; must consist of at least three years of classroom instruction; and must result in the award of the first academic diploma or degree leading to professional practice in physical therapy. The applicant must have completed courses in each of the following broad areas: basic sciences, clinical science, and physical therapy theory and procedures. The applicant must have also successfully completed United States required equivalent courses/hours in clinical education. The applicant must have successfully completed at least 15 semester credit hours in clinical education (upper division level) but will receive credit for no more than 23 semester hours. If the applicant has completed the required course work in clinical education but the transcript does not reflect the required credit hours then the credentialing entity may use the conversion formula of 60 contact hours per one semester credit.

(9) If the degree awarded is substantially equivalent to a degree in physical therapy as awarded by CAPTE-accredited programs in regionally accredited colleges and universities in the United States, the credentialing entity must use the Coursework Evaluation Tool for Foreign Educated Physical Therapists (Coursework Evaluation Tool), as developed by the Federation of State Boards of Physical Therapy and modified by the Texas board, when evaluating an applicant's credentials. The version of the tool used must correspond at minimum to the year the entry-level degree was awarded. Deficiencies must be identified and must show the subjects and credit hours necessary to satisfy the requirements of the Coursework Evaluation Tool. If the degree received is from a CAPTE-accredited program located outside the U.S., the program is considered equivalent to a domestic CAPTE-accredited physical therapy program, and the applicant is exempt from meeting the requirements of the Coursework Evaluation Tool.

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 March 5, 2007.

TRD-200700862

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 305-6900

Chapter 831. MIDWIFERY

The Texas Midwifery Board (board), with the approval of the Executive Commissioner of the Health and Human Services Commission, proposes amendments to §§831.1 - 831.4, 831.7, 831.11 - 831.17, 831.20 - 831.23, 831.31 - 831.37, 831.40, 831.51, 831.52, 831.54, 831.57, 831.58, 831.60, 831.65, 831.70, 831.75, 831.101, 831.111, 831.121, 831.131, 831.141, and 831.161 - 831.173, and new §831.174, concerning the licensing and regulation of midwives.

BACKGROUND AND PURPOSE

The amendments and new rule constitute the agency review of rules required by Government Code, §2001.039. The amendments clarify and update the rules, remove obsolete language, and ensure that the rules are consistent. The rule amendments also complete the implementation of House Bill (HB) 1535, 79th Legislature, Regular Session (2005), Sunset legislation, relating to the continuation and functions of the board; and the licensing and regulation of midwives. The new rule provides procedures consistent with the Administrative Procedure Act for issuance of a default order should a midwife fail to appear at a hearing at the State Office of Administrative Hearings.

SECTION-BY-SECTION SUMMARY

Amendments to §831.1 reflect the new section name.

Amendments to §831.2 reflect the addition of new language relating to standing orders in §831.52.

Amendments to §831.3 update the rules to include that board members may receive notification of meeting dates by e-mail.

Amendments to §831.4 remove unnecessary capitalization.

Amendments to §831.7 add the term "Midwifery Program Director" to ensure consistency with other sections of the rules.

Amendments to §831.11 renumber existing language to make the rules easier to read.

Amendments to §831.12 clarify that fees must be made payable to the department.

Amendments to §831.13 clarify the term for continuing education and list in detail the items already required on the current initial application forms approved by the Board but not previously reflected in rule.

Amendments to §831.13 and §831.14 remove obsolete language and add the National Safety Council to the list of acceptable providers of cardio-pulmonary resuscitation (CPR) training.

Amendments to §831.14 clarify that licenses are issued for a two year term and list in detail the items already required on the current renewal application forms approved by the Board but not previously reflected in rule.

Amendments to §831.15 clarify that a midwife who reapplies for licensure after failing to complete late renewal must meet the current requirements for an initial license.

Amendments to §831.16 clarify the term for continuing education.

Amendments to §831.17 include the word "also" for clarity.

Amendments to §831.20 include rule language related to failure to submit records or protocols based on the requirement already found in §831.165. The section has been renumbered to reflect the insertion.

Amendments to §831.21 contain a grammatical correction.

Amendments to §831.22 reflect Sunset legislation in the change from "documentation" to "licensure" because midwives now receive a license and not a "letter of documentation."

Amendments to §831.23 correct existing language to specify that the board and not the hearings examiner must issue the final order concerning a disciplinary action.

Amendments to §831.31 specify that a midwife shall serve as vice-chair of the committee and state that all meetings of the committee are open to the public.

Amendments to §831.32 require that a midwifery student enrolled in an approved course must complete the course within a five year period, correct an error to ensure that the number of clinical hours required for graduation matches the national standard (1350 not 1360), and add the National Safety Council to the list of acceptable providers of cardio-pulmonary resuscitation (CPR) training.

Amendments to §831.33 provide additional specifics on what new and renewing basic midwifery education courses will be evaluated on, including how they teach protocol writing, and the types of files reviewed during a site visit. The language also specifies that the Education Committee Chair will appoint the midwife member of the site visit team.

Amendments to §831.34 include a non-substantive change in the placement of "and/or" in a sentence.

Amendments to §831.35 extend the time before a new exam application must be considered by the Education Committee from 60 to 90 days.

Amendments to §831.36 clarify that a complaint may be closed for either insufficient evidence or no violation.

Amendments to §831.37 remove the obsolete word "draft" and correct the name of a board publication.

Amendments to §831.40 include a non-substantive change from "and" to "and/or."

Amendments to §831.51 update internal references and remove obsolete language.

Amendments to §831.52 add new language on standing orders from a physician to emphasize that it is the responsibility of the midwife to ensure that standing orders are legal and current.

Amendments to §831.54 add new language reiterating that the midwife must assess the client on an ongoing basis for any factors which might preclude the client receiving midwifery care.

Amendments to §831.57 clarify that a midwife may initiate a non-emergency termination of care in accordance the requirements of the section for any reason.

Amendments to §831.58 remove the unnecessary repetition of the word "initiate."

Amendments to §831.60 amend and standardize existing wording to specify that all care required by rule must be documented in midwifery records.

Amendments to §831.65 include non-substantive rewording for clarity.

Amendments to §831.70 amend and standardize existing wording to specify that all care required by rule must be documented in midwifery records.

Amendments to §831.75 add new language to require a midwife to recommend to a client that the timing of the first newborn visit to the health care provider who will provide care after the first six weeks of life be pre-arranged in advance, and amend and standardize existing wording to specify that all care required by rule must be documented in midwifery records.

Amendments to §831.101 include a non-substantive clarification by adding the word "recommending."

Amendments to §831.111 reflect the name change from the Texas Department of Health to the Department of State Health Services.

Amendments to §831.121 include a non-substantive clarification from "he/she" to "the midwife."

Amendments to §831.131 include the Sunset Review follow-up requirement that the board include more explicit language in the rules on how the midwife is required to provide notice to the client regarding where to file a complaint.

Amendments to §831.141 reflect the name change from the Texas Department of Health to the Department of State Health Services.

Amendments to §831.161 specify that a midwife shall serve as vice-chair of the committee.

Amendments to §831.162 state that only jurisdictional complaints shall be processed through the complaints process.

Amendments to §831.163 include a clarification that a complaint is "closed" not "dismissed."

Amendments to §831.164 include a clarification from "assigned" to "approved."

Amendments to §831.165 include minor, non-substantive wording corrections from "a" to "the" and from "and" to "and/or."

Amendments to §831.166 state that complaints presented to the committee must be jurisdictional.

Amendments to §831.167 clarify that a complaint may be resolved by a settlement conference and/or by an agreed order.

Amendments to §831.168 specify that the proposal for decision referred to the board is prepared by the Administrative Law Judge (ALJ).

Amendments to §831.169 clarify that a midwife may be required to participate in either basic or continuing midwifery education, and add new language to state that failure to comply with a board order is grounds for further disciplinary action. New language is also added to reflect the existing requirement that the board suspend a license for failure to pay child support in accordance with the Family Code, and deny renewal for default on a student loan in accordance with the Education Code.

Amendments to §831.170 clarify that a complaint may be closed for either insufficient evidence or no violation.

Amendments to §831.171 renumber existing language to make the rules easier to read.

Amendments to §831.172 add the wording "a licensee" to clarify that the board may also issue a cease and desist order if a licensee is violating the act or the rules.

Amendments to §831.173 reflect Sunset legislation in the change from "documentation" to "licensure."

New §831.174 provides procedures consistent with the Administrative Procedure Act for issuance of a default order should a midwife fail to appear at a hearing at the State Office of Administrative Hearings.

FISCAL NOTE

Kathy Perkins, Manager, Health Care Quality Section, has determined that for each year of the first five-year period that the sections are in effect, there will no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Perkins has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This was determined by interpretation of the rules that these entities will not be required to alter their business practices to comply with the sections. There is no anticipated economic costs to persons to comply with the sections as proposed. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Ms. Perkins has also determined that for each year of the first five years the sections are in effect, the public will benefit from the adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is to continue to ensure public health and safety through the licensing and regulation of midwives.

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the pubic health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The department has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposal may be submitted to Yvonne Feinleib, Midwifery Program Director, Professional Licensing and Certification Unit, Division for Regulatory Services, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756, (512) 834-4521 or by e-mail to midwifery@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Cathy Campbell, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.

Subchapter A. THE BOARD

22 TAC §§831.1 - 831.4, 831.7

STATUTORY AUTHORITY

The proposed amendments are authorized by the Texas Occupations Code, §203.151, which provides that, subject to the approval of the Executive Commissioner of the Health and Human Services Commission, the Midwifery Board shall adopt substantive and procedural rules for the licensing of midwives and minimum standards for the practice of midwifery, including educational requirements, complaint and disciplinary procedures, reciprocity of licensing with other states, and such other duties as may be imposed by the Texas Occupations Code, Chapter 203.

The proposed amendments affect the Occupations Code, Chapter 203. Review of the sections implements Government Code, §2001.039.

§831.1.Introduction.

(a) (No change.)

(b) Construction. These sections cover definitions; the Midwifery Board; board member training; the petition for the adoption of a rule; license required; fees; initial application; renewal; late renewal; renewal for retired midwives performing charity work; state midwifery roster; grounds for denial of application or disciplinary action; application or renewal with criminal conviction; surrender of license; reissuance of license after revocation, suspension or surrender; education committee; basic midwifery education; education course approval; education course denial or revocation of approval; exam approval, denial, or revocation of approval; complaints concerning education courses and comprehensive exams; jurisprudence examination; continuing education; standards for the practice of midwifery in Texas; definitions; protocols; termination of the midwife-client relationship; transfer of care in an emergency situation; prenatal care; labor and delivery; postpartum care; newborn and infant care; the administration of oxygen; eye prophylaxis; newborn screening; the informed choice and disclosure statement; the provision of support services; complaint review committee; reporting violations and/or complaints; records of complaints; complaint categories; disciplinary action and guidelines; complaint investigation; informal settlement conferences; hearings; disciplinary action; complaint disposition and appeals; refunds; cease and desist order; [ and] emergency suspension; and default orders.

§831.2.Definitions.

The following words and terms when used in these sections shall have the following meaning unless the context clearly indicates otherwise:

(1) - (20) (No change.)

(21) Standing delegation orders--Written instructions, orders, rules, regulations or procedures prepared by a physician and designated for a patient population, and delineating under what set of conditions and circumstances actions should be instituted, as described in the rules of the Texas Board of Medical Examiners in Chapter 193 (relating to standing delegation orders) and §831.52 of this title (relating to Inter-professional Care).

§831.3.Midwifery Board.

(a) - (c) (No change.)

(d) Meetings.

(1) Frequency. The Midwifery Board shall meet at least semi-annually and at other times when called by the Midwifery Board or the Commissioner. Notice of the time, date, place and purpose of regular meeting shall be provided to the members by mail; by e-mail; or by telephone [or both ], at least seven days in advance of each meeting.

(2) - (9) (No change.)

§831.4.Board Member Training.

(a) - (b) (No change.)

(c) A person appointed to the Midwifery Board is entitled to reimbursement, as provided by the current general appropriations act [ General Appropriations Act ], for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.

§831.7.Petition for the Adoption of a Rule.

(a) (No change.)

(b) Submission of the petition.

(1) (No change.)

(2) The petition shall be in writing; contain the petitioner's name, address, and organization, if any; and describe the rule and the reason for it; however, if the Midwifery Program Director [ program coordinator ] determines that further information is necessary to assist the board in reaching a decision, the Midwifery Program Director [ program coordinator ] may require that the petitioner resubmit the petition and that it contain:

(A) - (D) (No change.)

(3) The Midwifery Program Director [program coordinator ] may refuse to accept a petition which does not contain the information in paragraph (2) of this subsection or the information in paragraph (2)(A) - (D) of this subsection if the Midwifery Program Director [ program coordinator ] determines that the latter information is necessary.

(4) (No change.)

(c) Consideration and disposition of the petition.

(1) Except as otherwise provided in subsection (d) of this section, the Midwifery Program Director [ program coordinator ] shall submit an accepted petition to the board for its consideration and disposition.

(2) (No change.)

(3) If the board denies the petition, the Midwifery Program Director [program coordinator] shall give the petitioner written notice of the board's denial, including the board's reasons for the denial.

(4) (No change.)

(d) Subsequent petitions to adopt the same or similar rule. All initial accepted petitions for the adoption of a rule shall be presented to and decided by the board in accordance with the provisions of subsections (b) and (c) of this section. The Midwifery Program Director [ program coordinator ] may refuse to forward to the board for consideration any subsequent petition for the adoption of the same or a similar rule submitted within six months after the date of the initial petition.

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 March 12, 2007.

TRD-200700955

Susan Chick

Chair

Texas Midwifery Board

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 458-7111 x6972

22 TAC §§831.11 - 831.17, 831.20 - 831.23

STATUTORY AUTHORITY

The proposed amendments are authorized by the Texas Occupations Code, §203.151, which provides that, subject to the approval of the Executive Commissioner of the Health and Human Services Commission, the Midwifery Board shall adopt substantive and procedural rules for the licensing of midwives and minimum standards for the practice of midwifery, including educational requirements, complaint and disciplinary procedures, reciprocity of licensing with other states, and such other duties as may be imposed by the Texas Occupations Code, Chapter 203.

The proposed amendments affect the Occupations Code, Chapter 203. Review of the sections implements Government Code, §2001.039.

§831.11.License Required.

(a) (No change.)

(b) A midwife license shall be valid for a renewal period of two years starting March 1, 2006, except for initial licensure. [ A midwife's initial license shall be valid from the date issued until March 1 of the following renewal period. ]

(c) A midwife's initial license shall be valid from the date issued until March 1 of the following renewal period.

§831.12.Fees.

All fees must [should] be made payable to the Department of State Health Services and are non-refundable.

(1) - (11) (No change.)

§831.13.Initial Application.

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

(1) a completed licensure application form which shall contain: [;]

(A) specific information regarding personal data, social security number, birth date, other licenses held, and misdemeanor or felony convictions;

(B) the date of the application;

(C) a statement that the applicant has read Occupations Code, Chapter 203 (Act), and these rules and agrees to abide by them;

(D) a statement that the information in the application is truthful and that the applicant understands that providing false and misleading information on items which are material in determining the applicant's qualifications may result in the voiding of the application, or denial or the revocation of any license issued; and

(E) the signature of the applicant which has been dated; and

(F) any other information required by the Board.

(2) (No change.)

(3) proof of current cardiopulmonary resuscitation (CPR) certification for health care providers by the American Heart Association; [ or ] equivalent certification for the professional rescuer from the Red Cross; or equivalent certification for healthcare and professional rescuer from the National Safety Council;

(4) - (6) (No change.)

(7) proof of passing the jurisprudence examination approved by the Midwifery Board[, effective September 1, 2006 ]. The jurisprudence examination must have been taken no more than one year prior to the date of application.

(b) Initial licensure after interim of more than four years. A midwife seeking initial licensure who has not become licensed within four years of completing a basic midwifery education course approved by the Midwifery Board or accredited by MEAC shall in addition provide proof of having completed at least 40 contact hours of approved [ continuing ] midwifery continuing education within the year preceding the application, which shall be based upon a review of:

(1) - (2) (No change.)

§831.14.Renewal.

License renewal. Licensed midwives must apply for license renewal during the last January of each two-year renewal period. [ Licensure expires March 1 of the second or last year of the renewal period. ] The Midwifery Program will send renewal applications to licensed midwives during the last December of each renewal period. However, each midwife is solely responsible for compliance with the requirements for license renewal, 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 license renewal must include the following:

(1) a completed license renewal application form which shall require the provision of the preferred mailing address and telephone number, and a statement of all misdemeanor and felony offenses for which the licensee has been convicted, along with any other information required by the Board ;

(2) (No change.)

(3) proof of current CPR certification for health care providers by the American Heart Association; [or ] equivalent certification for the professional rescuer from the Red Cross; or equivalent certification for healthcare and professional rescuer from the National Safety Council;

(4) - (5) (No change.)

(6) proof of passing the jurisprudence examination approved by the Midwifery Board in the four years preceding renewal[ , effective September 1, 2006 ].

§831.15.Late Renewal.

(a) (No change.)

(b) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the current requirements and procedures for obtaining an initial license.

§831.16.Renewal for Retired Midwives Performing Charity Work.

(a) - (c) (No change.)

(d) For subsequent renewals, a retired midwife who is not practicing midwifery in Texas except for providing voluntary charity care may renew his or her midwifery license by submitting all the items required by §831.14 of this title except for:

(1) five hours of approved midwifery continuing education per year of renewal under this subsection, not ten hours; and

(2) the retired midwife renewal fee, not the regular renewal fee.

(e) - (f) (No change.)

§831.17.State Midwifery Roster.

The Midwifery Program shall maintain a roster of all individuals currently licensed 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 also provide information on new and/or late licensees to individual county clerks and local registrars of births during the course of a year as needed.

§831.20.Grounds for Denial of Application or Disciplinary Action.

Grounds for denial of application for licensure or license renewal and for disciplinary action.

(1) The Midwifery Board may deny an application for initial licensure or license renewal and may take disciplinary action against any person based upon proof of the following:

(A) - (J) (No change.)

(K) failure to practice midwifery in a manner consistent with the public health and safety; [or]

(L) failure to submit midwifery records and/or protocols in connection with the investigation of a complaint; or

(M) [ (L) ] demonstrated lack of personal or professional character in the practice of midwifery.

(2) (No change.)

§831.21.Application or Renewal with Criminal Conviction.

Licensure of persons with criminal convictions [ conviction ].

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

§831.22.Surrender of License.

(a) A midwife may surrender his or her license prior to its expiration for the current period by mailing the original license certificate and current renewal card [ acknowledgment letter ] back to the Midwifery Program together with a signed statement of his or her intent to surrender the license [ same ].

(b) - (c) (No change.)

§831.23.Reissuance of License after Revocation, Suspension, or Surrender.

(a) A person whose license to practice midwifery in this state has been revoked or suspended by the Midwifery Board or who has surrendered his or her license after having received notice that the Midwifery Program is investigating a complaint may not apply for reissuance of license 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 proposes to deny [ denies ] the application for reissuance of license, an applicant may request a hearing in accordance with the provisions of the Administrative Procedure Act (APA), Government Code, Chapter 2001, applicable state and federal statutes, the Rules of Practice and Procedures of the State Office of Administrative Hearings (SOAH) and this chapter. [ The decision of the hearing examiner shall be final. ]

(b) (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 March 12, 2007.

TRD-200700956

Susan Chick

Chair

Texas Midwifery Board

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 458-7111 x6972

22 TAC §§831.31 - 831.37, 831.40

STATUTORY AUTHORITY

The proposed amendments are authorized by the Texas Occupations Code, §203.151, which provides that, subject to the approval of the Executive Commissioner of the Health and Human Services Commission, the Midwifery Board shall adopt substantive and procedural rules for the licensing of midwives and minimum standards for the practice of midwifery, including educational requirements, complaint and disciplinary procedures, reciprocity of licensing with other states, and such other duties as may be imposed by the Texas Occupations Code, Chapter 203.

The proposed amendments affect the Occupations Code, Chapter 203. Review of the sections implements Government Code, §2001.039.

§831.31.Education Committee.

(a) The chair of the Midwifery Board shall appoint an education committee for a two year term, 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 members of the Midwifery Board:

(1) two licensed midwives, one of whom shall serve as chair and the other of whom shall serve as vice-chair;

(2) - (3) (No change.)

(b) (No change.)

(c) All [Except for informal settlement conferences, all other ] meetings and proceedings of the Education Committee shall be open to the public.

§831.32.Basic Midwifery Education.

(a) (No change.)

(b) Mandatory basic midwifery education shall:

(1) - (5) (No change.)

(6) provide clinical experience/preceptorship of at least one year in duration but no more than five years in duration and equivalent to 1350 [ 1360 ] clinical contact hours which prepares the student to become certified by NARM, including successful completion of at least the following activities:

(A) - (C) (No change.)

(7) (No change.)

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

(1) (No change.)

(2) a current cardiopulmonary resuscitation (CPR) certificate for health care providers from the American Heart Association [or ] an equivalent CPR certificate for the professional rescuer from the Red Cross ; or equivalent certification for healthcare and professional rescuer from the National Safety Council.

§831.33.Education Course Approval.

(a) Course approval.

(1) The course supervisor/administrator shall submit an application form and a non-refundable initial midwifery course application fee to the Midwifery Program with the following supporting documentation:

(A) (No change.)

(B) course curriculum with specific content references to:

(i) - (ii) (No change.)

(iii) NARM Skills Assessment Test Specifications; [and]

(iv) Texas Midwifery Basic Information and Instructor Manual; and [ . ]

(v) protocol writing, adaptation and revision.

(C) - (E) (No change.)

(2) (No change.)

(3) The Midwifery Program staff and Education Committee chair 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 licensed midwife within the provisional year. The midwife member of the evaluation team shall be appointed by the chair of the Education Committee [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:

(A) - (D) (No change.)

(E) a review of student, staff and preceptor files , to include coursework, protocols, and financial records.

(4) - (8) (No change.)

(b) - (d) (No change.)

§831.34.Education Course Denial or Revocation of Approval.

(a) (No change.)

(b) 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:

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

(4) the course supervisor has falsified course registration, attendance, [and/or] completion and/or other records; or

(5) (No change.)

(c) - (f) (No change.)

§831.35.Exam Approval, Denial, or Revocation of Approval.

Comprehensive exams.

(1) Comprehensive exam approval.

(A) - (B) (No change.)

(C) The Midwifery Program staff and Education Committee chair 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 90 [60 ] days.

(D) - (F) (No change.)

(2) - (6) (No change.)

§831.36.Complaints Concerning Education Courses and Comprehensive Exams.

(a) - (c) (No change.)

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

(1) (No change.)

(2) Order of presentation. After making the necessary introductory and explanatory remarks, the chair or vice-chair shall state the case number and the nature of the complaint.

(A) (No change.)

(B) 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 no violation; or

(ii) (No change.)

(C) (No change.)

(e) - (i) (No change.)

§831.37.Jurisprudence Examination.

(a) The department shall develop a [draft] jurisprudence examination and present it to the Midwifery Board for approval.

(b) The subject matter covered by the examination shall include the Act, this chapter, and other Texas laws which affect midwifery practice, as described in the current Texas Midwifery Basic Information and Instructor [ Instructors ] Manual.

(c) - (e) (No change.)

§831.40.Continuing Education.

All continuing education taken by midwives for the purpose of obtaining or renewing a midwifery license must be in accordance with this section.

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

(4) Course coordinators and instructors.

(A) (No change.)

(B) Course instructors shall have training and/or [and ] credentials appropriate for the course material they will teach.

(5) (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 March 12, 2007.

TRD-200700957

Susan Chick

Chair

Texas Midwifery Board

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 458-7111 x6972

22 TAC §§831.51, 831.52, 831.54, 831.57, 831.58, 831.60, 831.65, 831.70, 831.75, 831.101, 831.111, 831.121, 831.131, 831.141

STATUTORY AUTHORITY

The proposed amendments are authorized by the Texas Occupations Code, §203.151, which provides that, subject to the approval of the Executive Commissioner of the Health and Human Services Commission, the Midwifery Board shall adopt substantive and procedural rules for the licensing of midwives and minimum standards for the practice of midwifery, including educational requirements, complaint and disciplinary procedures, reciprocity of licensing with other states, and such other duties as may be imposed by the Texas Occupations Code, Chapter 203.

The proposed amendments affect the Occupations Code, Chapter 203. Review of the sections implements Government Code, §2001.039.

§831.51.Standards for the Practice of Midwifery in Texas.

(a) - (b) (No change.)

(c) Midwifery practice is based upon education in the sciences and upon necessary clinical skills as defined in §831.11 of this title (relating to License Required) [Annual Documentation)] and §831.32 [ §831.31 ] of this title (relating to Basic Midwifery Education). The education shall be obtained through apprenticeship or an approved basic midwifery education course.

(d) Midwifery care is provided by qualified practitioners. The midwife:

(1) is regulated by the Texas Midwifery Board [ of the Texas Department of Health]; and

(2) (No change.)

(e) - (h) (No change.)

§831.52.Inter-professional Care.

The following definitions regarding inter-professional care of women within a midwifery model of care apply to this chapter.

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

(5) Standing orders from a physician licensed in Texas must be obtained if a midwife provides any prescription medication to a client or her newborn other than oxygen and eye prophylaxis. The orders must be current (renewed annually) and must comply with the rules of the Texas Medical Board. Midwives have the responsibility not to comply with an outdated order.

§831.54.Policies and Protocols.

(a) The midwife shall establish, review, update, and adhere to individualized policies and protocols in the practice of midwifery. These protocols shall be consistent with standard midwifery management as described in a standard midwifery textbook or a combination of standard textbooks and references. Any textbook or reference which is also an approved text or reference for a midwifery educational program or school which has been approved by the Texas Midwifery Board shall be considered an acceptable textbook or reference for use in developing a midwife's personal protocols. The midwife shall maintain and update a written record of the textbooks and references upon which she/he has based each protocol and submit that record to the Midwifery Program upon request.

(b) The midwife shall:

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

(5) assess the client on an ongoing basis for any factors which might preclude a client from admission into or continuing in midwifery care based on the policies and protocols;

(6) [ (5) ] review and document review of all policies and protocols at least annually; and

(7) [ (6) ] modify policies and protocols as needed, and document any changes.

§831.57.Termination of the Midwife-Client Relationship.

A midwife shall terminate care of a client only in accordance with this section unless a transfer of care results from an emergency situation.

(1) (No change.)

(2) The midwife may terminate care for any reason by:

(A) - (D) (No change.)

§831.58.Transfer of Care in An Emergency Situation.

In an emergency situation, the midwife shall initiate emergency care as indicated by the situation and [initiate] immediate transfer of care in accordance with the protocols of his or her practice by making a reasonable effort to contact the health care professional or institution to whom the client will be transferred and to follow the health care professional's instructions; and continue emergency care as needed while:

(1) - (2) (No change.)

§831.60.Prenatal Care.

(a) The midwife shall collect, [and] assess , and document maternal care data through a detailed obstetric, gynecologic, medical, social, and family history and a complete prenatal physical exam and appropriate laboratory testing; develop and implement a plan of care; thereafter evaluate the client's condition on an ongoing basis; and modify the plan of care as necessary. Health education/counseling shall be provided by the midwife as appropriate.

(b) - (d) (No change.)

§831.65.Labor and Delivery.

(a) The midwife shall evaluate the client when the midwife arrives for [the] labor and delivery, by obtaining a history, performing a physical exam, and collecting laboratory specimens.

(b) The midwife shall monitor the client's progress in labor [ client after the midwife's arrival for the labor and delivery ] by monitoring vital signs, contractions, fetal heart tones, cervical dilation, effacement, station, presentation, membrane status, input/output and subjective status.

(c) - (e) (No change.)

§831.70.Postpartum Care.

(a) The midwife shall assess [monitor and advise ] the mother during the immediate postpartum period by monitoring vital signs, uterine fundus, bleeding and subjective status for a minimum of two hours after mother's condition is stable.

(b) The midwife shall:

(1) collect, [and] assess and document maternal care data throughout the postpartum period including history, physical exam, laboratory testing;

(2) - (4) (No change.)

(c) - (d) (No change.)

§831.75.Newborn Care During the First Six Weeks After Birth.

(a) Prior to delivery, the midwife shall establish a plan with the client for continuing care of the newborn. This plan shall:

(1) include referral or transfer to a health care professional who has current pediatric knowledge; [and]

(2) include a recommendation that the client pre-arrange the timing of the first newborn visit with the health care professional; and

(3) [ (2) ] be documented in the midwifery record.

(b) The midwife shall:

(1) collect, assess and document [evaluate the] newborn care data by monitoring the vital signs, performing a physical exam, and obtaining the laboratory tests necessary for the infant during the postpartum period;

(2) - (3) (No change.)

(c) - (f) (No change.)

§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; recommending referral; and/or recommending transfer or transport of the mother and newborn in compliance with Subchapter D of this chapter (relating to Practice of Midwifery).

(b) - (d) (No change.)

§831.111.Eye Prophylaxis.

(a) Each midwife is responsible for seeing that every infant which she or he delivers receives the necessary eye prophylaxis to prevent ophthalmia neonatorum, in accordance with the medications specified by the Department of State Health Services [ Texas Department of Health ].

(b) (No change.)

§831.121.Newborn Screening.

(a) Each midwife who assists at the birth of a child is responsible for seeing that newborn screening tests are performed according to the Health and Safety Code, Chapters 33 and 34, and 25 Texas Administrative Code §§37.51-37.69 (relating to Newborn Screening Program). The midwife may perform the tests or refer for them. If the midwife performs the tests [ she or he does them ], then she or he must have been appropriately trained. Each midwife must have one of the following documents on file with the midwifery program in order to be licensed.

(1) - (2) (No change.)

(b) - (c) (No change.)

§831.131.Informed Choice and Disclosure Statement.

As required by the Act, §203.351 (relating to Informed Choice and Disclosure Requirements), each midwife shall disclose in oral and written form to a prospective client the limitations on the skills and practices of the midwife. The written informed choice and disclosure statement which has been approved by the Midwifery Board shall include:

(1) (No change.)

(2) a disclosure statement, which includes the legal requirements of the midwife and prohibited acts as stated in the Act. The disclosure statement may not exceed 500 words and must be in Spanish and English; and must contain; [ . ]

(3) information on where to file a complaint against a licensed midwife, including the name, mailing address and telephone number for the Texas Midwifery Board.

§831.141.Provision of Support Services.

This provision applies to the [Texas] Department of State Health Services (department), a local health department, a public health district, or a local health unit which is owned, operated, or leased by a political subdivision of the state. The appropriate governmental entity is required to provide clinical and laboratory services to pregnant women and newborns who are clients of midwives as long as the services are required of the midwives by the Act, §203.355 (relating to Support Services). The procedure and requirements for the clinical and laboratory services are as follows.

(1) - (3) (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 March 12, 2007.

TRD-200700958

Susan Chick

Chair

Texas Midwifery Board

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 458-7111 x6972

22 TAC §§831.161 - 831.174

STATUTORY AUTHORITY

The proposed amendments and new rule are authorized by the Texas Occupations Code, §203.151, which provides that, subject to the approval of the Executive Commissioner of the Health and Human Services Commission, the Midwifery Board shall adopt substantive and procedural rules for the licensing of midwives and minimum standards for the practice of midwifery, including educational requirements, complaint and disciplinary procedures, reciprocity of licensing with other states, and such other duties as may be imposed by the Texas Occupations Code, Chapter 203.

The proposed amendments and new rule affect the Occupations Code, Chapter 203. Review of the sections implements Government Code, §2001.039.

§831.161.Complaint Review Committee.

Complaint Review Committee. With the approval of the Midwifery Board, the chair of the Midwifery Board shall appoint a Complaint Review Committee for two-year terms to consider all complaints filed against licensed midwives or unlicensed individuals and to make recommendations to the Midwifery Board.

(1) The Complaint Review Committee shall consist of the following Midwifery Board members:

(A) two licensed midwives, one of whom shall serve as the chair and the other of whom shall serve as vice-chair ;

(B) - (C) (No change.)

(2) - (3) (No change.)

§831.162.Reporting Violations and/or Complaints.

Report of a complaint. Any person or agency may contact the Midwifery Program by telephone, in person, or in writing, alleging that a licensed 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) (No change.)

(2) The complaint review process begins when:

(A) - (B) (No change.)

(C) the Midwifery Program confirms that the complaint is jurisdictional;

(D) [ (C) ] the Midwifery Program confirms that the complaint alleges acts which took place not more than five years before the receipt of the complaint; and

(E) [ (D) ] the Midwifery Program assigns a case number.

(3) (No change.)

§831.163.Records of Complaints.

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

(1) - (5) (No change.)

(6) basis for recommending closure [dismissal ] of the complaint;

(7) - (8) (No change.)

§831.164.Complaint Categories.

(a) (No change.)

(b) The final complaint category shall be approved [assigned ] by the Complaint Review Committee after completion of the investigation.

§831.165.Disciplinary Action and Guidelines.

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

(1) - (8) (No change.)

(9) prior determinations by the Midwifery Board that the [a ] midwife has violated the Act and/or rules; and

(10) (No change.)

(b) In addition to or in lieu of the penalties and sanctions under §831.169(a) of this title (relating to Disciplinary Action), the following administrative penalties shall be used in recommending disposition of complaints involving the following violations:

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

(4) for violations of Subchapter D of this chapter (relating to Practice of Midwifery):

(A) - (B) (No change.)

(C) for a subsequent offense:

(i) an administrative penalty not to exceed $5,000 per offense, with each day of a continuing violation constituting a separate violation; and/or [and]

(ii) license revocation;

(5) (No change.)

(6) for procuring or renewing a license through fraud:

(A) denial of license; and/or [and]

(B) an administrative penalty not to exceed $5000 per offense, with each day of a continuing violation constituting a separate violation;

(7) - (8) (No change.)

(c) (No change.)

§831.166.Complaint Investigation.

(a) The Midwifery Program Director or director's designee shall:

(1) - (6) (No change.)

(7) present each jurisdictional complaint to the Complaint Review Committee; and

(8) (No change.)

(b) (No change.)

§831.167.Informal Settlement Conferences.

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

(1) (No change.)

(2) Order of presentation. After explaining the purpose of the conference and other related matters, the chair or vice-chair shall state the case number and the nature of the complaint.

(A) - (C) (No change.)

(D) Matters not resolved by settlement conference and/or agreed order shall be referred for a hearing.

§831.168.Hearings.

(a) - (c) (No change.)

(d) The proposal [ All proposals ] for decision prepared by the ALJ will be referred to the Midwifery Board for final decision.

§831.169.Disciplinary Action.

(a) 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) - (6) (No change.)

(7) required participation by the midwife in one or more education or continuing education programs;

(8) - (12) (No change.)

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

(c) Failure to comply. Failure to comply with a Midwifery Board order shall constitute grounds for additional disciplinary action.

(d) The Midwifery Board shall deny renewal if required by the Education Code, §57.491 (relating to Defaults on Guaranteed Student Loans).

(e) The Midwifery Board upon receipt of a final court or attorney general's order will suspend a license due to failure to pay child support per the Family Code, Chapter 232.

§831.170.Complaint Disposition and Appeals.

(a) - (b) (No change.)

(c) The Midwifery Board may close the complaint due to insufficient evidence or for no violation.

§831.171.Refunds.

(a) (No change.)

(b) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the licensed midwife for a service regulated by this chapter.

(c) The Midwifery Board may not require payment of other damages or estimate harm in a refund order.

§831.172.Cease and Desist Order.

(a) If it appears to the Midwifery Board that a licensee or a person who is not licensed under this chapter is violating the Act, this section, or another state statute or rule relating to the practice of midwifery, the Midwifery Board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in the activity.

(b) (No change.)

§831.173.Emergency Suspension.

(a) The Midwifery Board or a three-member committee of Midwifery Board members designated by the Midwifery Board shall temporarily suspend a midwife's [ the ] license [ of a documented midwife ] if the Midwifery Board or committee determines from the evidence or information presented to it that continued practice by the licensed midwife would constitute a continuing and imminent threat to the public welfare.

(b) - (d) (No change.)

§831.174.Default Order.

(a) For purposes of this section, default means the failure of the respondent to appear in person or by legal representative on the day and at the time set for hearing in a contested case or the failure to appear by telephone in accordance with the notice of hearing.

(b) Remedies available upon default. The Administrative Law Judge (ALJ) shall proceed in the party's absence and such failure to appear shall entitle the department to seek informal disposition as provided by the Texas Government Code, Chapter 2001. The ALJ shall grant any motion by the department to remove the case from the contested hearing docket and allow for informal disposition by the board.

(c) The board may enter a default judgment by issuing an order against the defaulting party in which the factual allegations in the notice of hearing are deemed admitted as true without the requirement of submitting additional proof, upon the offer of proof that proper notice was provided to the defaulting party opponent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code, Chapter 2001, and the State Office of Administrative Hearings Rules of Procedure.

(d) Motion to set aside and reopen. A timely motion by the respondent to set aside the default order and reopen the record may be granted if the respondent establishes that the failure to attend the hearing was neither intentional nor the result of conscious indifference, and that such failure was due to mistake, accident, or circumstances beyond the respondent's control.

(1) A motion to set aside the default order and reopen the record shall be filed with the board prior to the time that the order of the board becomes final pursuant to the provisions of the Texas Government Code.

(2) A motion to set aside the default order and reopen the record is not a motion for rehearing and is not to be considered a substitute for a motion for rehearing. The filing of a motion to set aside the default order and reopen has no effect on either the statutory time periods for the filing of a motion for rehearing or on the time period for ruling on a motion for rehearing, as provided in the Texas Government Code.

(e) This subsection also applies to cases where service of the notice of hearing on a defaulting party is shown only by proof that the notice was sent to the party's last known address as shown on the department's records, with no showing of actual receipt by the defaulting party or the defaulting party's agent. In that situation, the default procedures described in subsection (c) of this section may be used if there is credible evidence that the notice of hearing was sent by certified or registered mail, return receipt requested, to the defaulting party's last known address.

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 March 12, 2007.

TRD-200700959

Susan Chick

Chair

Texas Midwifery Board

Earliest possible date of adoption: April 22, 2007

For further information, please call: (512) 458-7111 x6972