CHAPTER 166. PHYSICIAN REGISTRATION
The Texas Medical Board (Board) proposes amendments to Chapter 166, Physician Registration, §166.2, concerning Continuing Medical Education.
The amendments to §166.2, relating to Continuing Medical Education, would allow members of the Board's Expert Physician Panel to obtain 1 hour of Continuing Medical Education in ethics for completion of training as offered by the Board and up to 6 hours of formal Continuing Medical Education for time actually spent in reviewing standard of care cases and providing a report to the Board.
Robert D. Simpson, General Counsel for the Board, has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the proposal will be to encourage physicians in this state to participate as members of the Board's Expert Physician Panel, thus providing a greater pool of physicians who can review standard of care cases, act as chart monitors, and monitor compliance with Board orders.
Mr. Simpson has also determined that for the first five-year period the section is in effect there will be no fiscal implication to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the rule as proposed. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendment is also authorized by §153.001, Texas Occupations Code.
No other statutes, articles or codes are affected by this proposal.
§166.2.Continuing Medical Education.
(a) As a prerequisite to the registration of a physician's permit a physician must complete 48 credits of continuing medical education (CME) every 24 months. CME credits must be completed in the following categories:
(1) At least 24 credits every 24 months are to be from formal courses that are:
(A) designated for AMA/PRA Category 1 credit by a CME sponsor accredited by the Accreditation Council for Continuing Medical Education or a state medical society recognized by the Committee for Review and Recognition of the Accreditation Council for Continuing Medical Education;
(B) approved for prescribed credit by the American Academy of Family Physicians;
(C) designated for AOA Category 1-A credit required for osteopathic physicians by an accredited CME sponsor approved by the American Osteopathic Association;
(D) approved by the Texas Medical Association based on standards established by the AMA for its Physician's Recognition Award; or
(E) approved by the board for medical ethics and/or professional responsibility courses only.
(2) At least two of the 24 formal credits of CME which are required by paragraph (1) of this subsection must involve the study of medical ethics and/or professional responsibility. Whether a particular credit of CME involves the study of medical ethics and/or professional responsibility shall be determined by the organizations which are enumerated in paragraph (1) of this subsection as part of their course planning.
(3) The remaining 24 credits for the 24-month period may be composed of informal self-study, attendance at hospital lectures, grand rounds, or case conferences not approved for formal CME, and shall be recorded in a manner that can be easily transmitted to the board upon request.
(4) A physician whose practice includes treating patients in an emergency room setting may complete two credits of formal continuing medical education, as required by paragraph (1) of this subsection, relating to forensic evidence. To obtain credit for such courses, a course must include information regarding indicators of sexual assault and interviewing a person who may have been the victim of a sexual assault.
(5) A physician may complete one credit of formal continuing medical education, as required by paragraph (1) of this subsection, for each hour of time spent up to 12 hours, based on participation in a program sponsored by the board and approved for CME credit for the evaluation of a physician competency or practice monitoring.
(b) - (p) (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 13, 2009.
TRD-200900638
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 305-7016
22 TAC §§183.2, 183.4, 183.10, 183.20
The Texas Medical Board (board) proposes amendments to Chapter 183, Acupuncture, §183.2, Definitions, §183.4, Licensure, §183.10, Patient Records and §183.20, Continuing Acupuncture Education.
The amendments to §183.2, relating to Definitions, recognize acupuncture schools in the United States or Canada that have been approved by an accrediting body recognized by the Texas Higher Education Coordinating Board and delete obsolete references to examinations taken prior to January 1, 2007.
The amendments to §183.4, relating to Licensure, clarify a possible confusion created by the current language of the rule, which incorrectly indicates that an unapproved acupuncture school in the United States or Canada can be recognized for licensure; increase the limit on times allowed for passage of the examination required for licensure from 3 times to 5 times; delete the requirement that the JP examination be passed within three attempts and provides that passage of the JP examination is not required more than once for another or similar license; clarify that an application is expired, rather than inactive, after one year; provide that applicants of acupuncture schools in the United States or Canada are not required to have a personal interview at board offices; update procedures for submitting fingerprints for licensure applications; clarify the requirement to file an application for relicensure when a license has been expired for more than one year; and make grammatical corrections.
The amendments to §183.10, relating to Patient Records, specify vital signs that must be taken in a proper examination and reduce time for records to be maintained from indefinitely to 5 years, specifying situations in which they must be maintained longer. The public benefit anticipated as a result of enforcing this section will be to clarify what an initial examination by an acupuncturist should include and to assure that records are maintained by acupuncturists for a reasonable period of time.
The amendments to §183.20, relating to Continuing Acupuncture Education, delete a provision stating that credit for an ethics course completed for purposes of maintenance of licensure for another health profession may satisfy the requirement for continuing acupuncture education in ethics; require one hour of continuing acupuncture education in ethics after November 30, 2010; update references to other board rules; and specify that three years of previous experience must be continuous to achieve approved provider status. The public benefit anticipated as a result of enforcing this section will be to assure that Continuing Acupuncture Education ethics credit is only given for education regarding the practice of acupuncture and update and clarify the language of the rule.
Elsewhere in this issue of the Texas Register, the board contemporaneously proposes the rule review for Chapter 183
Robert D. Simpson, General Counsel for the board, has determined that for the first five-year period the amendments as proposed are in effect there will be no fiscal implication to state or local government as a result of enforcing the amended sections.
Mr. Simpson has also determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be as stated above. There will be no effect to individuals required to comply with the amendments as proposed. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendments are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are also authorized by §205.101, Texas Occupations Code.
No other statutes, articles or codes are affected by this proposal.
§183.2.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the content clearly indicates otherwise.
(1) (No change.)
(2) Acceptable approved acupuncture school--Effective January 1, 1996, and in addition to and consistent with the requirements of §205.206 of the Tex. Occ. Code:
(A) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was a candidate for accreditation by the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) or another accrediting body recognized by the Texas Higher Education Coordinating Board, provides certification that the curriculum at the time of the applicant's graduation was equivalent to the curriculum upon which accreditation granted, offered a masters degree or a professional certificate or diploma upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following:
(i) - (iv) (No change.)
(B) a school of acupuncture located in the United States
or Canada which, at the time of the applicant's graduation, was accredited
by ACAOM or another accrediting body recognized by the Texas
Higher Education Coordinating Board, offered a masters degree[
,] or a professional certificate or diploma upon graduation,
and had a curriculum of 1,800 hours with at least 450 hours of herbal
studies which at a minimum included the following:
(i) - (iv) (No change.)
(C) a school of acupuncture located outside the United
States or Canada that is determined by the board to be substantially
equivalent to a Texas acupuncture school or a school defined in subparagraph
(B) of this paragraph. An [through an] evaluation
by the American Association of Collegiate Registrars and Admissions
Officers (AACRAO) or an evaluation requested by the board may
be utilized when making a determination of substantial equivalence.
(3) - (18) (No change.)
(19) Full NCCAOM examination--The National Certification Commission for Acupuncture and Oriental Medicine examination, consisting of the following:
(A) (No change.)
(B) if taken on or after June 1, 2004 [and before
January 1, 2007]: the NCCAOM Foundation of Oriental Medicine
Module, Acupuncture Module, Point Location Module, [and]
the Chinese Herbology Module, and the Biomedicine Module.
[(C) if taken on or after January
1, 2007, the NCCAOM Foundation of Oriental Medicine Module, Acupuncture
Module, Point Locations Module, the Chinese Herbology Module, and
the Biomedicine Module.]
(20) Good professional character--An applicant for
licensure must not be in violation of or have committed any act described
in the Act, §205.351 [§05.351].
(21) - (34) (No change.)
§183.4.Licensure.
(a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant:
(1) - (3) (No change.)
(4) is a graduate of an acceptable approved acupuncture
school [or received and completed training which, in the opinion
of the acupuncture board, was substantially equivalent to training
provided by such a school];
(5) has taken and passed, within five [three
] attempts, each component of the full National Certification
Commission for Acupuncture and Oriental Medicine (NCCAOM) examination.
If an applicant submits to multiple attempts on a component before
and on or after June 1, 2004, the number of attempts shall be combined
based on the subject matter tested;
(6) (No change.)
(7) for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the acupuncture profession in this state. The jurisprudence examination shall be developed and administered as follows:
(A) Questions [Question] for
the JP Exam shall be prepared by agency staff with input from the
Acupuncture board and the agency staff shall make arrangements for
a facility by which applicants can take the examination.
(B) - (D) (No change.)
(E) A person who has passed the JP Exam shall
not be required to retake the Exam for another or similar license,
except as a specific requirement of the board. [
An applicant
who is unable to pass the JP exam within three attempts must appear
before a committee of the board to address the applicant's inability
to pass the examination and to re-evaluate the applicant's eligibility
for licensure. It is at the discretion of the committee to allow an
applicant additional attempts to take the JP exam]; and
(8) (No change.)
(b) Procedural rules for licensure applicants. The following provisions shall apply to all licensure applicants.
(1) Applicants for licensure:
(A) (No change.)
(B) whose application for licensure which has been
filed with the board office and which is in excess of one year old
from the date of receipt shall be considered expired [
inactive]. Any fee previously submitted with that application shall
be forfeited. Any further application procedure for licensure will
require submission of a new application and inclusion of the current
licensure fee.
(C) - (G) (No change.)
(2) - (4) (No change.)
(c) Licensure documentation.
(1) Original documents/interview. Upon request,
any applicant must appear for a personal interview at the board offices
and present original documents to a representative of the board for
inspection. [An applicant must appear for a personal interview
at the board offices and present original documents to a representative
of the board for inspection.] Original documents may include,
but are not limited to, those listed in paragraph (2) of this subsection.
(2) Required documentation. Documentation required of all applicants for licensure shall include the following:
(A) - (H) (No change.)
(I) Fingerprint card. Each applicant must submit
his or her fingerprints according to the procedure prescribed by the
board [complete a fingerprint card for the Texas Department
of Public Safety and return it to the acupuncture board as part of
the application].
(J) (No change.)
(3) - (4) (No change.)
(d) (No change.)
(e) Distinguished professor temporary license.
(1) Issuance. The acupuncture board may issue a distinguished professor temporary license to an acupuncturist who:
(A) holds a substantially equivalent license, certificate,
or authority to practice acupuncture in another state, province, or
country; [and]
(B) agrees to and limits any acupuncture practice in
this state to acupuncture practice for demonstration or teaching purposes
for acupuncture students and/or instructors, and in direct affiliation
with an acupuncture school that is a candidate for accreditation or
has accreditation through the Accreditation Commission for Acupuncture
and Oriental Medicine (ACAOM) at which the students are trained and/or
the instructors teach; [and]
(C) agrees to and limits practice to demonstrations
or instruction under the direct supervision of a licensed Texas acupuncturist
who holds an unrestricted license to practice acupuncture in this
state; [and]
(D) pays any required fees for issuance or renewal
of the distinguished professor temporary license; and [.]
(E) (No change.)
(2) - (3) (No change.)
(f) Relicensure. If an acupuncturist's license has
been expired for one year, it is considered to have been canceled,
and the acupuncturist may not renew the license. The acupuncturist
may submit an application for relicensure and must comply [
obtain a new license by complying] with the requirements and
procedures for obtaining an original license.
[(g) Approved schools. An ACAOM approved
acupuncture school may use the word "college" as a means of representation
to the public as long as it maintains ACAOM accreditation. An approved
school may not represent itself as a university.]
§183.10.Patient Records.
(a) Acupuncturists licensed under the Act shall keep and maintain adequate records of all patient visits or consultations which shall, at a minimum, be written in English and include:
(1) (No change.)
(2) vital signs to include body temperature, pulse or heart rate, respiratory rate, and blood pressure upon initial presentation of the patient, and those vital signs as deemed appropriate by the practitioner for follow-up treatment;
(3) - (11) (No change.)
(b) (No change.)
(c) Maintenance of Medical and Billing Records [
Acupuncturists licensed under the Act shall keep copies of patient
treatment records indefinitely and billing records for a period of
five years from the time of the last treatment rendered to the patient
by the acupuncturist].
(1) A licensed acupuncturist shall maintain adequate medical and billing records of a patient for a minimum of five years from the anniversary date of the date of last treatment by the acupuncturist.
(2) If a patient was younger than 18 years of age when last treated by the acupuncturist, the medical and billing records of the patient shall be maintained by the acupuncturist until the patient reaches age 21 or for five years from the date of last treatment, whichever is longer.
(3) Acupuncturists shall retain medical and billing records for such longer length of time than that imposed herein when mandated by other federal or state statute or regulation.
(4) An acupuncturist may destroy medical and billing records that relate to any civil, criminal or administrative proceeding only if the physician knows the proceeding has been finally resolved and the records have been maintained at least as long as required by paragraphs (1) - (3) of this subsection.
(d) - (g) (No change.)
§183.20.Continuing Acupuncture Education.
(a) (No change.)
(b) Minimum Continuing Acupuncture Education. As a prerequisite to the annual registration of the license of an acupuncturist, the acupuncturist shall complete 17 hours of continuing acupuncture education (CAE) each year.
(1) - (2) (No change.)
(3) At least one of the required hours shall be from
a course in ethics. [An ethics course completed for purposes
of maintenance of licensure for another health profession shall satisfy
this requirement.]
(4) (No change.)
(5) Effective for licensees applying for renewal of their licensees on or after November 30, 2010, at least one hour of biomedicine.
(6) [(5)] No more than two of
the required hours may be from courses that primarily relate to practice
enhancement or business or office administration.
(7) [(6)] Courses may be taught
through live lecture, distance learning, or the Internet.
(c) - (h) (No change.)
(i) Fee for Issuance of Temporary License. The fee
for issuance of a temporary license pursuant to the provisions of
this section shall be in the amount specified under §175.1 of
this title (relating to Application Fees [Fees, Penalties,
and Applications]); however, the fee need not be paid prior
to the issuance of the temporary license, but shall be paid prior
to the renewal of a permanent license.
(j) - (k) (No change.)
(l) Monetary Penalty. Failure to obtain and timely
report the continuing acupuncture education hours for renewal of a
license shall subject the licensee to a monetary penalty for late
registration in the amount set forth in §175.2 and §175.3
of this title [of board rules] (relating to
Registration and Renewal Fees and Penalties [
Fees, Penalties, and Applications]).
(m) - (q) (No change.)
(r) Criteria for Provider Approval.
(1) (No change.)
(2) To become an approved provider, a provider shall submit to the board evidence that the provider has three continuous years of previous experience providing CAE courses in Texas that were approved by the board. In addition the provider must have no history of complaints or reprimands with the board.
(3) (No change.)
(4) Acupuncture schools and colleges which have been approved by the board, as defined under §183.2(2) of this title (relating to Definitions), who seek to be approved providers shall be required to submit an application for an approved provider number to the board.
(s) Requirements of Approved Providers.
(1) - (3) (No change.)
(4) An approved provider shall keep the following records for a period of four years in one identified location:
(A) - (C) (No change.)
(D) The attendance record for each course. [which show]
(E) (No change.)
(5) - (9) (No change.)
(t) - (v) (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 13, 2009.
TRD-200900639
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 305-7016
CHAPTER 469. COMPLAINTS AND ENFORCEMENT
The Texas State Board of Examiners of Psychologists proposes amendments to §469.1, Timeliness of Complaints. The amendments are being proposed to clarify the rule.
Sherry L. Lee, Executive Director, has determined that for the first five-year period the amendments will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amendments.
Ms. Lee 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 to help the Board protect the public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700 or email brenda.skiff@tsbep.state.tx.us.
The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.
No other code, articles or statutes are affected by this section.
§469.1.Timeliness of Complaints.
(a) A complaint is timely filed if it is received by the Board, in proper form, within five years of the date of the termination of professional services.
(b) A complaint alleging sexual misconduct by a licensee is timely filed if received within ten years of the termination of services or the patient's reaching the age of majority.
(c) A statute of limitations applying to a complaint filed against a licensee by a health licensing board in another jurisdiction, or filed by another health licensing board in Texas, begins after that jurisdiction's or authority's investigation is complete.
(d) A complaint based on discipline in another jurisdiction is timely filed within five years of the date that the board receives notice of the disciplinary action.
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 11, 2009.
TRD-200900562
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 305-7706
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Examiners of Psychologists or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas State Board of Examiners of Psychologists proposes the repeal of rule §469.11, Legal Actions Reported. The repeal will be replaced with an extended, clarified rule.
Sherry L. Lee, Executive Director, has determined that for the first five-year period the repeal will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed repeal.
Ms. Lee 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 to help the Board protect the public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700 or email Brenda.skiff@tsbep.state.tx.us.
The repeal is proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.
No other code, articles or statutes are affected by this section.
§469.11.Legal Actions Reported.
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 11, 2009.
TRD-200900563
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 305-7706
The Texas State Board of Examiners of Psychologists proposes new rule §469.11, Legal Actions Reported and Reciprocal Discipline. The new rule is being proposed to clarify the former rule and to add a new provision regarding disciplinary actions.
Sherry L. Lee, Executive Director, has determined that for the first five-year period the new rule will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amendments.
Ms. Lee 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 to help the Board protect the public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700 or email Brenda.skiff@tsbep.state.tx.us.
The new rule is proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.
No other code, articles or statutes are affected by this section.
§469.11.Legal Actions Reported and Reciprocal Discipline.
(a) Licensees are required to report legal actions as follows:
(1) Any criminal action taken against a licensee including, but not limited to, arrest, indictment, or conviction, must be reported in writing to the Board within thirty days of the activity.
(2) Any civil lawsuit pertaining to the practice of psychology or involving a licensee's patient or former patient must be reported as follows:
(A) A licensee who initiates a lawsuit must send a copy of the initial pleadings to the Board within thirty days of the filing of such action with the court.
(B) A licensee who is a defendant in a lawsuit must send a copy of the initial pleadings to the Board within thirty days of service upon the licensee.
(3) A complaint shall be opened if a reported criminal action constitutes grounds for disciplinary action as set forth in the Act at 501.401. A complaint may be opened if a reported civil action constitutes grounds for disciplinary action under Board rules.
(4) Any administrative action (complaint) initiated against a licensee by another health licensing board in this state or any other jurisdiction must be reported to the Board by sending a copy of the correspondence and complaint within thirty days of its receipt by the licensee.
(5) Any disciplinary action taken against the licensee by another health licensing board in this state or any other jurisdiction must be reported to the Board by sending a copy of the order or letter of discipline within thirty days of its receipt by the license.
(b) Reciprocal Discipline:
(1) A complaint shall be opened upon receipt of a report of discipline against a licensee by another health licensing board in this state or any other jurisdiction.
(2) The disciplinary action imposed on a licensee who is disciplined by another health licensing board will be the discipline applicable to the same conduct or rule violation under Board rules.
(3) A voluntary surrender of a license in lieu of disciplinary action or during an investigation by another health licensing board constitutes disciplinary action under this rule. A complaint shall be opened and the disciplinary action imposed will be the discipline applicable under Board rules to the alleged conduct as if proved.
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 11, 2009.
TRD-200900564
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 305-7706
The Texas State Board of Examiners of Dietitians (board) proposes the repeal of §§711.1 - 711.22 and new §§711.1 - 711.22, concerning the licensing and regulation of dietitians.
BACKGROUND AND PURPOSE
Texas Government Code, §2001.039 requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Texas Government Code, Chapter 2001 (Administrative Procedure Act). Sections 711.1 - 711.22 have been reviewed and the board has determined that the reasons for adopting the sections continue to exist in that rules concerning the licensure and regulation of dietitians still needed; however, the rules will be repealed and proposed as new rules as described in this preamble. The proposed repeals and new sections are the result of the comprehensive rule review undertaken by the board and the board's staff.
SECTION-BY-SECTION SUMMARY
In addition to the changes specifically outlined, the existing rules have been revised and reorganized as new rules to ensure appropriate section, subsection, and paragraph organization and captioning; to ensure clarity; to improve spelling, grammar, and punctuation; to improve agency-wide consistency between programs, as appropriate; to ensure that the rules reflect current legal, policy, and operational considerations; to ensure accuracy of legal citations; to delete repetitive, obsolete, or unnecessary language; to improve draftsmanship; and to make the rules more accessible, understandable, and usable, to the extent possible.
The following changes are proposed relating to the repeal and readoption of §711.1 (Definitions). The definition of "formal hearing" was deleted as not necessary.
The following changes are proposed relating to the repeal and readoption of §711.2 (The Board's Operation) and §711.3 (Fees). Section 711.2 was reorganized for ease of use and the subsection that formerly related to licensing fees was moved to a separate section, the new §711.3 (Fees).
The following changes are proposed relating to the repeal of §711.3 (The Profession of Dietetics). The section was moved to new §711.4 and renamed as the Profession of Dietetics and Code of Ethics. New provisions were added at §711.4(c)(1)(P) that require a license holder to report child abuse or neglect and abuse or neglect of the elderly or disabled, in accordance with existing laws.
The following changes are proposed relating to the repeal of §711.8 and renumbered as new §711.9 (Determination of Eligibility for Licensure). The provision requiring that the board ratify applications approved by staff was deleted as obsolete and unnecessary.
The following changes are proposed relating to the repeal of §711.17 and renumbered as new §711.16 (Continuing Education Requirements). The board proposes requiring the Texas jurisprudence examination as an ongoing condition of license renewal and allows license holders one hour of continuing education credit for its completion. The rules formerly provided that the jurisprudence exam would be required only for licenses renewed between January 1, 2007, and December 31, 2008. Additionally, the board proposes to delete the provision allowing a license holder who is not in active practice and is more than 60 years of age to be exempt from continuing education requirements. The board believes that the public interest is best served by requiring licensed dietitians to maintain their licenses in active status and regularly complete continuing education and the Texas jurisprudence examination.
The following changes are proposed relating to the repeal of §711.16 (Inactive Status). The board proposes to delete provisions relating to inactive status as unnecessary. The statute does not require that inactive status be an option for licensees and few licensees avail themselves of the option. The board believes that the public interest is best served by requiring licensed dietitians to maintain their licenses in active status and regularly complete continuing education and the Texas jurisprudence examination.
FISCAL NOTE
Bobbe Alexander, Executive Secretary, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to the state or local governments as a result of enforcing or administering the sections as proposed.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Alexander has also determined that there will be no adverse economic impact on small businesses or micro-businesses required to comply with the sections as proposed. This determination was made because the repeals and new rules do not impose any new requirements that impose a cost on small businesses, as defined by Texas Government Code §2006.001. Small businesses and micro-businesses will not be required to alter their business practices in order to comply with the rules. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.
There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
In addition, Ms. Alexander 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 protect and promote public health, safety, and welfare, through the effective regulation of licensed dietitians.
REGULATORY ANALYSIS
The board has determined that this proposal is not a "major environmental rule" as defined by Texas 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 public 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 board 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 Texas Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Bobbe Alexander, Executive Secretary, Texas State Board of Examiners of Dietitians, Department of State Health Services, MC 1982, P.O. Box 149347, Austin, Texas 78714-9347, (512) 834-6601, or by email to dietitian@dshs.state.tx.us. When submitting comments by e-mail, please indicate "Comments on Proposed Rules" in the subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas State Board of Examiners of Dietitians or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Texas Occupations Code, §701.151(2), which requires the board to adopt a code of ethics; by Texas Occupations Code, §701.152, which authorizes the board to adopt rules consistent with the chapter; by Texas Occupations Code, §701.1535(a), which requires the board to adopt rules on consequences of criminal conviction; and by Texas Occupations Code, §701.154(a), which requires the board to set fees by rule. Review of the rules implements Texas Government Code, §2001.039.
The proposed repeals affect the Texas Occupations Code, Chapter 701.
§711.1.Definitions.
§711.2.The Board's Operation.
§711.3.The Profession of Dietetics.
§711.4.Academic Requirements for Licensure.
§711.5.Preplanned Professional Experience Requirements for Examination.
§711.6.Examinations for Dietitian Licensure.
§711.7.Application Procedures for All Licensees.
§711.8.Determination of Eligibility for Licensure.
§711.9.Provisional Licensed Dietitians.
§711.10.Licensing.
§711.11.Changes of Name or Address.
§711.12.License Renewal.
§711.13.Licensing of Persons with Criminal Backgrounds to be Dietitians and Provisional Dietitians.
§711.14.Violations, Complaints, and Subsequent Board Actions.
§711.15.Formal Hearings.
§711.16.Inactive Status.
§711.17.Continuing Education Requirements.
§711.18.Temporary License.
§711.19.Informal Disposition.
§711.20.Default Orders.
§711.21.Suspension of License Under the Family Code.
§711.22.Qualifications of Licensed Dietitians to Provide Diabetes Self-Management Training.
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 13, 2009.
TRD-200900636
Janet Hall
Chair
Texas State Board of Examiners of Dietitians
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 458-7111 x6972
The proposed new rules are authorized by Texas Occupations Code, §701.151(2), which requires the board to adopt a code of ethics; by Texas Occupations Code, §701.152, which authorizes the board to adopt rules consistent with the chapter; by Texas Occupations Code, §701.1535(a), which requires the board to adopt rules on consequences of criminal conviction; and by Texas Occupations Code, §701.154(a), which requires the board to set fees by rule. Review of the rules implements Texas Texas Government Code, §2001.039.
The proposed new rules affect the Texas Occupations Code, Chapter 701.
§711.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Accredited facilities--Facilities accredited by the Joint Commission on Accreditation of Health Care Organizations.
(2) Act--The Licensed Dietitian Act, Texas Occupations Code, Chapter 701.
(3) ALJ--Administrative Law Judge.
(4) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.
(5) Association--The American Dietetic Association, which is the national professional association of dietitians.
(6) Board--The Texas State Board of Examiners of Dietitians.
(7) Certified facilities, agencies, or organizations--Facilities, agencies, or organizations certified by federal agencies.
(8) Commission--The Commission on Dietetic Registration of the American Dietetic Association, which is the agency that evaluates credentials, administers proficiency examinations, and issues certificates of registration to qualifying dietitians, and is a member of the National Commission on Health Certifying Agencies. The Commission also approves continuing education activities.
(9) Contested case--A proceeding in accordance with the APA and this chapter, including, but not restricted to, rule enforcement and licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for an administrative hearing.
(10) CPE--Continuing Professional Experience.
(11) Department--Department of State Health Services
(12) Dietitian--A person licensed under the Act.
(13) Dietetics--The professional discipline of applying and integrating scientific principles of food, nutrition, biochemistry, physiology, management, and behavioral and social sciences under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle to achieve and maintain the health of people. The term includes, without limitation, the development, management, and provision of nutrition services.
(14) Executive Secretary--Administrator of licensing activities for the board.
(15) Licensed dietitian (L.D.)--A person licensed under the Act.
(16) Licensed facilities, agencies, or organizations--Facilities, agencies, or organizations licensed by state agencies.
(17) Licensee--A person who holds a current license as a dietitian or provisional licensed dietitian issued under the Act.
(18) Nutrition services--Assessing the nutritional needs of individuals and groups and determining resources and constraints in the practice; establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints; providing nutrition counseling in health and disease; developing, implementing, and managing nutrition care systems; or evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition care services.
(19) Nutrition assessment--The evaluation of the nutritional needs of individuals and groups based on appropriate biochemical, anthropometric, physical, and dietary data to determine nutrient needs and recommend appropriate nutritional intake including enteral and parenteral nutrition. An important component of medical nutrition therapy.
(20) Nutrition counseling--Advising and assisting individuals or groups on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status. An important component of medical nutrition therapy.
(21) Pleading--Any written allegation filed by a party concerning its claim or position.
(22) Provisional licensed dietitian (PLD)--A person provisionally licensed under the Act.
(23) Registered dietitian (RD)--A person who is currently registered as a dietitian by the commission.
(24) SOAH--The State Office of Administrative Hearings.
§711.2.The Board's Operation.
(a) Officers.
(1) Chair.
(A) The chair shall preside at all board meetings at which he or she is in attendance and perform all duties prescribed by law or board rules.
(B) The chair is authorized by the board to make day-to-day minor decisions regarding board activities in order to facilitate the responsiveness and effectiveness of the board.
(C) The chair shall serve as an ex officio member of all committees except the complaints committee.
(2) Vice-chair.
(A) The vice-chair shall perform the duties of the chair in case of the absence or disability of the chair.
(B) In case the office of chair becomes vacant, the vice-chair shall serve until a successor is appointed.
(b) Elections and Training Program.
(1) The governor shall designate a member of the board as the presiding officer of the board to serve in that capacity at the pleasure of the governor.
(2) The board shall meet to elect an assistant presiding officer in accordance with the Act.
(3) A board member shall not serve more than two consecutive terms in the office of vice-chair.
(4) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with the Act.
(c) Meetings.
(1) The board shall hold at least two regular meetings and additional meetings as necessary during each year beginning on September 1, at such designated date, place, and time as may be determined by the chair.
(2) Special meetings may be called by the chair at such times, dates, and places as become necessary for the transaction of board business.
(3) Meetings shall be announced and conducted under the provisions of the Open Meetings Act, Texas Government Code, Chapter 551.
(d) Quorum. A quorum of the board necessary to conduct official business is five members.
(e) Transaction of official business.
(1) The board may transact official business only when in a legally constituted meeting with a quorum present.
(2) The board shall not be bound in any way by any statement or action on the part of any board or staff member except when a statement or action is in pursuance of specific instructions of the board.
(3) Board action shall require a majority vote of those members present and voting.
(f) Policy against discrimination. The board shall make decisions in the discharge of its statutory authority without discrimination based on any person's race, creed, gender, genetic information, religion, national origin, geographical distribution, age, physical condition, or economic status.
(g) Impartiality. Any board member who is unable to be impartial in any proceeding before the board, such as that pertaining to an applicant's eligibility for licensure or a complaint against or a violation by a licensee, shall so declare this to the board and shall not participate in any board proceedings involving that individual.
(h) Attendance.
(1) The policy of the board is that members shall attend regular and committee meetings as scheduled.
(2) The board may report to the governor the attendance records of members.
(3) Except in case of emergency, board members shall notify the executive secretary at least 48 hours prior to the scheduled meeting if he or she will be absent.
(4) Except in case of emergency, the executive secretary shall notify the chair at least 48 hours prior to the scheduled meeting if he or she will be absent.
(i) Reimbursement for expense.
(1) A board member is entitled to reimbursement for travel expenses as provided by the latest General Appropriations Act passed by the Texas Legislature.
(2) Payment to board members of travel expenses shall be requested on official state travel vouchers.
(3) Board travel must conform to existing policies of the department.
(4) Attendance at conventions, meetings, and seminars must be clearly related to the performance of board duties and show a benefit to the state.
(j) Rules of order. The latest edition of Roberts Rules of Order shall be the basis of parliamentary decisions except where otherwise provided by these board rules.
(k) Agendas.
(1) The executive secretary shall prepare and submit to each member of the board, prior to each meeting, an agenda which includes items requested by members, items required by law, unfinished business, and other matters of board business, which have been approved for discussion by the chair.
(2) The official agenda of a meeting shall be filed with the Texas secretary of state in accordance with the Texas Open Meetings Act, Texas Government Code, Chapter 551.
(l) Minutes.
(1) Drafts of the minutes of each meeting shall be forwarded to each member of the board for review and comments prior to approval by the board.
(2) After approval by the board, the minutes of any board meeting are official only when affixed with the original signatures of the chair and the executive secretary.
(3) The official minutes of board meetings shall be posted on the board's website.
(m) Official records.
(1) All official records of the board, except files containing information considered confidential under the provisions of the Texas Public Information Act, Texas Government Code, Chapter 552, shall be open for inspection upon written request.
(2) A person may obtain photocopies of records upon written request and by paying the cost set by the department. Payment shall be made prior to release of the records.
(n) Committees.
(1) The board or the chair with the approval of the board may establish committees deemed necessary to assist the board in carrying out its duties and responsibilities.
(2) The chair may appoint the members of the board to serve on committees and may designate the committee chair.
(3) The chair of the board may appoint non-board members to serve as consultants to a committee on a voluntary basis, subject to board approval.
(4) Committee chairs shall make regular reports to the board in interim written reports and/or at regular meetings, as needed.
(5) Committees shall direct all reports or other materials to the executive secretary for distribution.
(6) Committees shall meet when called by the chair of the committee or when so directed by the board.
(7) The following standing committees shall be appointed by the chair each odd-numbered year to serve a term of two years.
(A) The rules committee shall be composed of two board members who are licensed dietitians and one public member of the board. The committee shall review all board rules periodically to ensure that the rules are current in relation to dietetic practice, and may recommend and propose new or amended rules to the board. The committee shall consider all petitions for adoption of rules and shall recommend disposition of these petitions to the board in accordance with subsection (p) of this section.
(B) The program approval committee shall be composed of three board members who are licensed dietitians. The committee shall review all applications for internship and preplanned professional experience programs received by the board and shall either approve or deny the applications. Determinations made by the committee are subject to ratification at the next regular meeting of the board.
(C) The consumer information committee shall be composed of two board members who are licensed dietitians and one public member of the board. The committee shall recommend to the executive secretary the publication of consumer information related to the board and shall guide the preparation of all consumer information related publications. The committee shall recommend to the board action to be taken regarding proposed publications.
(D) The complaints committee shall review complaints received by the board and shall recommend action to be taken on complaints in accordance with §711.18 of this title (relating to Violations, Complaints and Subsequent Board Actions). The chair shall appoint at least one public member of the board to the complaints committee.
(o) Registry.
(1) The department shall publish a registry of current license holders.
(2) The registry shall include, but not be limited to, the name, preferred mailing address, and telephone number of current licensees.
(3) The registry will be available on the board's Internet web site.
(p) Petition for adoption of a rule.
(1) Submission of the petition.
(A) Any person may petition the board to adopt a rule.
(B) The petition shall be in writing, shall contain the petitioner's name and address, and shall describe the rule and the reason for it; however, if the executive secretary determines that further information is necessary to assist the board in reaching a decision, the executive secretary may require that the petitioner resubmit the petition and that it contain:
(i) a brief explanation of the proposed rule;
(ii) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any;
(iii) a statement of the statutory or other authority under which the rule is to be promulgated; and
(iv) the public benefits anticipated as a result of adopting the rule or the anticipated injury or inequity which would result from the failure to adopt the proposed rule.
(C) The board may deny a petition which does not contain the information in subparagraph (B) of this paragraph or the information in subparagraph (B)(i) - (iv) of this paragraph if the executive secretary determines that the latter is necessary.
(D) The petition shall be mailed or delivered to the executive secretary.
(2) Consideration and disposition of the petition.
(A) The executive secretary shall submit a completed petition to the board for its consideration.
(B) Within 60 days after receipt of the petition by the executive secretary, or within 60 days after receipt of a resubmitted petition in accordance with paragraph (1)(B)(i) - (iv) of this subsection, the board shall either:
(i) deny the petition;
(ii) initiate rule-making procedures; or
(iii) deny the petition, but refer the petition to the rules committee for its recommendation. The committee shall report its recommendations to the board at its next regular meeting.
(C) The board may deny parts of the petition and/or institute rule making procedures on parts of the petition.
(D) If the board denies the petition, the executive secretary shall give the petitioner written notice of the board's denial, including the reason(s) for the denial.
(E) If the board initiates rule-making procedures, the version of the rule which the board proposes may differ from the version proposed by the petitioner.
(3) Subsequent petitions to adopt the same or similar rules. All initial petitions for the adoption of a rule shall be presented to and decided by the board in accordance with the provisions of paragraphs (1) and (2) of this subsection. The board may refuse to consider any subsequent petition for the adoption of the same or similar rule submitted within six months after the date of the initial petition.
§711.3.Fees.
(a) Schedule of fees for licensure as a dietitian:
(1) application (includes two year initial license) fee--$108;
(2) license fee for upgrade of provisional licensed dietitian--$20;
(3) renewal fee: an initial regular license or a renewal regular license--$90; and
(4) late renewal fee:
(A) $112.50 when renewed on or within 90 days of expiration; or
(B) $135.00 when renewed later than 90 days but less than one year;
(b) Application for licensure as a temporary licensed dietitian, including initial license fee--$54.
(c) Schedule of fees for licensure as a provisional licensed dietitian:
(1) application (includes initial license) fee--$54;
(2) renewal fee for license issued for a one-year term--$45; and
(3) late renewal fee:
(A) $56.25 when renewed on or within 90 days of expiration; or
(B) $67.50 when renewed later than 90 days but less than one year.
(d) Additional fees for licensure as a dietitian, temporary licensed dietitian, and a provisional licensed dietitian:
(1) license certificate and identification card replacement fee--$20;
(2) application processing fee for preplanned professional experience approval--$300;
(3) license reinstatement fee following suspension under the Family Code--$80;
(4) written verification of licensure fee--$25; and
(5) returned check fee--$25.
(e) For all applications and renewal applications, the board is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.
(f) For all applications and renewal applications, the board is authorized to collect fees to fund the Office of Patient Protection, Health Professions Council, as mandated by law.
(g) An applicant whose check for the application fee is returned marked insufficient funds, account closed, or payment stopped shall be allowed to reinstate the application by remitting to the board a money order or check for guaranteed funds in the amount of the application fee plus the returned check fee within 30 days of the date of receipt of the board's notice. An application will be considered incomplete until the fee has been received and cleared through the appropriate financial institution.
(h) An approved applicant whose check for the license fee is returned marked insufficient funds, account closed or payment stopped shall remit to the board a money order or check for guaranteed funds in the amount of the license fee plus the returned check fee within 30 days of the date of receipt of the board's notice. Otherwise, the application and the approval shall be invalid.
(i) A licensee whose check for the renewal fee is returned marked insufficient funds, account closed or payment stopped shall remit to the board a money order or check for guaranteed funds in the amount of the renewal fee plus the returned check fee within 30 days of the date of receipt of the board's notice. Otherwise, the license shall not be renewed. If a renewal card has already been issued, it shall be invalid.
(j) Fees paid to the board by applicants and licensees are not refundable.
(k) The board shall make periodic reviews of its fee schedule and make any adjustments necessary to provide funds to meet its expenses without creating an unnecessary surplus. Such adjustments shall be through rule amendments.
§711.4.The Profession of Dietetics and Code of Ethics.
(a) The profession of dietetics includes six primary areas of expertise: clinical, educational, management, consultation, community and research; and includes without limitation the development, management, and provision of nutrition services, as follows:
(1) planning, developing, controlling, and evaluating food service systems;
(2) coordinating and integrating clinical and administrative aspects of dietetics to provide quality nutrition care;
(3) establishing and maintaining standards of food production, service, sanitation, safety, and security;
(4) planning, conducting, and evaluating educational programs relating to nutrition care;
(5) developing menu patterns and evaluating them for nutritional adequacy;
(6) planning layout designs and determining equipment requirements for food service facilities;
(7) developing specifications for the procurement of food and food service equipment and supplies;
(8) developing and implementing plans of nutrition care for individuals based on assessment of nutrition needs;
(9) counseling individuals, families, and groups in nutrition principles, dietary plans, and food selection and economics;
(10) communicating appropriate diet history and nutrition intervention data through medical record systems;
(11) participating with physicians and allied health personnel as the provider of nutrition care;
(12) planning, conducting or participating in, and interpreting, evaluating, and utilizing pertinent current research related to nutrition care;
(13) providing consultation and nutrition care to community groups and identifying and evaluating needs to establish priorities for community nutrition programs;
(14) publishing and evaluating technical and lay food and nutrition publications for all age, socioeconomic, and ethnic groups; and
(15) planning, conducting, and evaluating dietary studies and participating in nutrition and epidemiologic studies with a nutrition component.
(b) Provider of nutrition services. A person licensed by the board is designated as a health care provider of nutrition services.
(1) A licensed dietitian, acting within the scope of his or her license and consistent with medical direction or authorization as provided in this section, may accept, transcribe into a patient's medical record or transmit verbal or electronically-transmitted orders, including medication orders, from a physician to other authorized health care professionals relating to the implementation or provision of medical nutrition therapy and related medical protocols for an individual patient or group of patients. In a licensed health facility, the medical direction or authorization shall be provided, as appropriate, through a physician's order, or a standing medical order, or standing delegation order, or medical protocol issued in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Board of Medical Examiners implementing the subchapter. In a private practice setting, the medical direction or authorization shall be provided, as appropriate, through the physician's order, standing medical order, or standing delegation order of a referring physician, in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Board of Medical Examiners implementing the subchapter.
(2) A licensed dietitian, acting within the scope of his or her license and consistent with medical direction or authorization as provided in this section, may order medical laboratory tests relating to the implementation or provision of medical nutrition therapy and related medical protocols for individual patients or groups of patients. In a licensed health facility, the medical direction or authorization shall be provided, as appropriate, through a physician's order, or a standing medical order, or standing delegation order, or medical protocol, issued in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Board of Medical Examiners implementing the subchapter. In a private practice setting, the medical direction or authorization shall be provided through the physician's order, standing medical order, or a standing delegation order of the referring physician, in accordance with Texas Occupations Code, Chapter 157, Subchapter A, and rules adopted by the Board of Medical Examiners implementing the subchapter.
(c) Code of ethics. These rules shall constitute a code of ethics as authorized by the Act, §701.151.
(1) Professional representation and responsibilities.
(A) A licensee shall conduct himself/herself with honesty, integrity and fairness.
(B) A licensee shall not misrepresent any professional qualifications or credentials. A licensee shall not make any false or misleading claims about the efficacy of any nutrition services or dietary supplements.
(C) A licensee shall not permit the use of his/her name for the purpose of certifying that nutrition services have been rendered unless that licensee has provided or supervised the provision of those services.
(D) A licensee shall not promote or endorse products in a manner that is false or misleading.
(E) A licensee shall disclose to a client, a person supervised by the licensee, or an associate any personal gain or profit from any item, procedure, or service used by the licensee with the client, supervisee, or associate.
(F) A licensee shall maintain knowledge and skills required for professional competence. A licensee shall provide nutrition services based on scientific principles and current information. A licensee shall present substantiated information and interpret controversial information without bias.
(G) A licensee shall not abuse alcohol or drugs in any manner which detrimentally affects the provision of nutrition services.
(H) A licensee shall comply with the provisions of the Texas Controlled Substances Act, the Health and Safety Code, Chapter 481 and Chapter 483 relating to dangerous drugs; and any rules of the department or the Texas State Board of Pharmacy implementing those chapters.
(I) A licensee shall have the responsibility of reporting alleged misrepresentations or violations of board rules to the board's executive secretary.
(J) A licensee shall comply with any order relating to the licensee which is issued by the board.
(K) A licensee shall not aid or abet the practice or misrepresentation of an unlicensed person when that person is required to have a license under the Act.
(L) A licensed dietitian shall supervise a provisional licensed dietitian in accordance with §711.10 of this title (relating to Provisional Licensed Dietitians).
(M) A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee, any person supervised by the licensee or any dietary supplement.
(N) A licensee shall conform to generally accepted principles and standards of dietetic practice which are those generally recognized by the profession as appropriate for the situation presented, including those promulgated or interpreted by or under the association or commission, and other professional or governmental bodies. A licensee shall recognize and exercise professional judgment within the limits of his/her qualifications and collaborate with others, seek counsel, or make referrals as appropriate.
(O) A licensee shall not interfere with an investigation or disciplinary proceeding by willful misrepresentation of facts to the board or its authorized representative or by the use of threats or harassment against any person.
(P) A licensee shall report information if required by the following statutes:
(i) Texas Family Code, Chapter 261, concerning abuse or neglect of minors; or
(ii) Texas Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly or disabled persons.
(2) Professional relationships.
(A) A licensee shall make known to a prospective client the important aspects of the professional relationship including fees and arrangements for payment which might affect the client's decision to enter into the relationship. A licensee shall bill a client or a third party in the manner agreed to by the licensee and in accordance with state and federal law.
(B) A licensee shall not receive or give a commission or rebate or any other form of remuneration for the referral of clients for professional services.
(C) A licensee shall disclose to clients any interest in commercial enterprises which the licensee promotes for the purpose of personal gain or profit.
(D) A licensee shall take reasonable action to inform a client's physician and any appropriate allied health care provider in cases where a client's nutritional status indicates a change in medical status.
(E) A licensee shall provide nutrition services without discrimination based on race, creed, gender, religion, national origin, or age.
(F) A licensee shall not violate any provision of any federal or state statute relating to confidentiality of client communication and/or records. A licensee shall protect confidential information and make full disclosure about any limitations on his/her ability to guarantee full confidentiality.
(G) A licensee shall not engage in sexual contact with a client. The term "sexual contact" means any type of sexual behavior described in the Texas Penal Code, Chapters 21, 22, or 43, and includes sexual intercourse. A licensee shall not engage in sexual harassment in connection with professional practice.
(H) A licensee shall terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services provided.
(I) A licensee shall not provide services to a client or the public if by reason of any mental or physical condition of the licensee, the services cannot be provided with reasonable skill or safety to the client or the public.
(J) A licensee shall not provide any services which result in mental or physical injury to a client or which create an unreasonable risk that the client may be mentally or physically harmed.
(K) A licensee shall provide sufficient information to enable clients and others to make their own informed decision regarding nutritional services.
(L) A licensee shall be alert to situations that might cause a conflict of interest or have the appearance of a conflict. A licensee shall make full disclosure when a real or potential conflict of interest arises.
(3) Supervision of provisional licensed dietitian. A licensed dietitian shall supervise a provisional licensed dietitian or a temporary licensed dietitian for whom the licensee has assumed supervisory responsibility.
(4) On the written request of a client, a client's guardian, or a client's parent, if the client is a minor, a licensee shall provide, in plain language, a written explanation of the charges for client nutrition services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party.
(5) A licensee may not persistently or flagrantly overcharge or overtreat a client.
(6) Sanctions. A licensee shall be subject to disciplinary action by the board if under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Article 56.31, the licensee is issued a public letter of reprimand, is assessed a civil penalty by a court, or has been convicted and ordered to pay court costs under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Chapter 56, Subchapter B, Article 56.55.
(d) Disclosure.
(1) A licensee shall make a reasonable attempt to notify each client of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board by providing notification:
(A) on each written contract for services of a licensee;
(B) on a sign prominently displayed in the primary place of business of each licensee; or
(C) in a bill for service provided by a licensee to a client or third party.
(2) A provisional licensed dietitian must include the name and telephone number of his or her supervisor in all advertising and announcements of services including business cards and applications for employment.
(e) Unlawful, false, misleading, or deceptive advertising.
(1) A licensee shall use factual information to inform the public and colleagues of his/her services. A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification.
(2) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:
(A) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;
(B) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;
(C) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;
(D) contains a testimonial;
(E) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;
(F) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;
(G) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;
(H) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or
(I) advertises or represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.
(3) A "health care professional" includes a licensed dietitian, provisional licensed dietitian, temporary licensed dietitian, or any other person licensed, certified, or registered by the state in a health-related profession.
(f) Applicants. A violation of any provision of subsection (c) of this section by a person who is an applicant or who subsequently applies for a license (even though the person was not a licensee at the time of the violation) may be a basis for disapproval of the application under §711.9(d)(7) of this title (relating to Determination of Eligibility for Licensure).
§711.5.Academic Requirements for Licensure.
(a) General.
(1) The board shall accept as meeting licensure requirements baccalaureate and post-baccalaureate degrees and course work received from American colleges or universities which held accreditation, at the time the degree was conferred or the course work was taken, from accepted regional educational accrediting associations as reported by the American Association of Collegiate Registrars and Admissions Officers.
(2) Degrees and course work received at foreign colleges and universities shall be acceptable only if such course work could be counted as transfer credit from accredited colleges or universities as reported by the American Association of Collegiate Registrars and Admissions Officers.
(3) Persons applying for licensure or provisional licensure must possess a baccalaureate or post-baccalaureate degree with a major course of study in human nutrition, food and nutrition, nutrition education dietetics, or food systems management.
(4) In place of the requirements in paragraph (3) of this subsection, a person may have an equivalent major course of study defined as either:
(A) baccalaureate or post-baccalaureate degree or course work including a minimum of 30 semester hours specifically designed to train a person to apply and integrate scientific principles of human nutrition under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle. Of these 30 semester hours, a minimum of 18 semester hours must be from human nutrition, food and nutrition, dietetics, or food systems management. Of these 18 semester hours, at least three semester hours must be from four of the five following course areas:
(i) upper-division human nutrition related to disease;
(ii) upper-division food service systems management;
(iii) bio- or physiological chemistry, or advanced normal human nutrition;
(iv) food science; or
(v) upper-division nutrition education; or
(B) a baccalaureate or post-baccalaureate degree, including a major course of study meeting the minimum academic requirements to qualify for examination by the commission.
(5) The relevance to licensure of academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by other means acceptable to the board.
(6) In the event that an academic deficiency is present, an applicant may have one year in which to complete the additional course work acceptable to the board before the application will be voided and the applicant will be required to reapply and to pay additional application fees.
(7) The semester hours may be part of a degree plan or in addition to a degree.
(b) Transcripts.
(1) Applicants must submit official transcripts of all relevant academic credit.
(2) The board shall accept no course which an applicant's transcript indicates was not completed with a passing grade for credit, nor shall any course completed twice within a five-year period be counted twice to meet the academic requirements as specified in paragraph (3) of this subsection.
(3) In evaluating transcripts, the board shall consider a quarter hour of academic credit as two-thirds of a semester hour.
§711.6.Preplanned Professional Experience Requirements for Licensure.
(a) General. Applicants for examination must have satisfactorily completed an approved preplanned, documented professional experience program or internship in dietetics practice under the sponsorship of a licensed dietitian or a registered dietitian. The program or internship and the sponsor must be approved by the board or the association. A person who participates as a trainee in a board-approved program or internship must be provisionally licensed in accordance with §711.10 of this title (relating to Provisional Licensed Dietitians).
(1) An internship shall:
(A) be a dietetic internship, a coordinated undergraduate program in dietetics, or a preplanned professional experience program in dietetics approved by the association or by the board; and
(B) have an endorsement submitted from the director of the program with the application.
(2) A preplanned professional experience program shall be:
(A) an individualized program, beyond the undergraduate level approved by the board or the association;
(B) be planned and sponsored by at least one licensed or registered dietitian; and
(C) completed within three years after commencement of the program.
(3) Documentation of the internship or preplanned professional experience program must be provided to the board by completion of the proper documentation form prescribed by the board.
(4) Applicants who are registered in active status by the commission at the time of making application shall submit a photocopy of the registration card issued by the commission. The applicant's internship or preplanned professional experience program accepted for registration by the commission shall be acceptable for licensure by the board. No further proof of completion of an internship or preplanned professional experience shall be required.
(5) Provisional licensed dietitians shall be deemed to have met the academic requirements for admission into board approved preplanned professional experience and internship programs.
(b) Application and approval or disapproval procedures for board approved programs.
(1) The board shall delegate responsibility for the review and approval or denial of preplanned professional experience programs in dietetics and dietetic internships to the program approval committee. Determinations made by the committee are subject to ratification at the next regular meeting of the board. At the request of the committee, the chair of the board may appoint, on a volunteer basis, consultants recommended by the board from dietetic experience programs to advise the committee.
(2) Approval of each program shall be obtained prior to commencement of the program. Each program may commence upon receipt of notification from the executive secretary that the program has been approved by the program approval committee.
(3) Sponsor(s) or applicant(s) desiring approval of a program, or reapproval of program plans when applicable, shall submit to the executive secretary properly completed application forms provided by the board.
(A) The applicant or sponsor shall submit the application processing fee with the application.
(B) An original and four copies of the entire application must be submitted in binders with all pages clearly legible and numbered. All signatures on the required forms in the original application must be originals, not photocopies.
(C) If the application is revised or supplemented during the review process, the applicant must submit an original and four copies of a transmittal letter plus an original and four copies of the revision or supplement specified.
(D) If a page is to be revised, the complete new page must be submitted with the changed item or information clearly marked on the four copies, but not on the original page.
(4) The program approval committee may request clarification of program plans and/or additional information it deems necessary prior to deciding the approval status of the application.
(5) Sponsor(s) of all board approved and provisionally approved programs shall notify the program approval committee of any changes in the dietetic faculty and facilities, agencies, or organizations utilized in the program, and shall request program approval committee approval for major curriculum changes.
(6) All programs which are not approved, or which lost their approval, shall receive a report of deficiencies from the program approval committee and may reapply for approval following correction of the deficiencies previously cited. Documentation of the corrections shall be submitted with the reapplication. Application fees, and site inspection fees, if applicable, shall be submitted in the reapplication process.
(7) If the program approval committee determines that another state licensing agency's criteria for similar programs meets this board's criteria, programs approved by that state licensing agency shall be deemed to be approved.
(c) General guidelines for board-approved programs.
(1) Students of the programs shall be licensed as provisional license dietitians in accordance with §711.10 of this title and shall be referred to as trainees.
(2) The sponsor(s) of the program shall be one or more licensed dietitians who shall be employed by the facilities, agencies, or organizations utilized in the program. The sponsor shall be employed either full-time, part-time, or on a consultant basis. All sponsor(s) shall observe and professionally assess the trainee's performance and competence.
(3) The sponsor, on behalf of the trainee, shall enter into written agreements of affiliation with appropriate accredited or certified and licensed organization(s).
(4) The program shall be planned to extend over a period of not less than 12 months, or more than three years. In the event that any program extends over its planned time, the sponsor(s) shall submit progress reports to the program approval committee at the planned completion date and annually thereafter until the program is completed. The progress reports shall include the reason(s) for delay and the anticipated date of completion of the program.
(5) Admission requirements shall include academic requirements as set out in §711.5(a)(3) and (4) of this title (relating to Academic Requirements for Licensure).
(6) The written agreement clarifying the terms of the program between the trainee and the sponsors shall include the following:
(A) a statement providing for periodic evaluation of the trainee's performance, including criteria for continuation in or dismissal from the program;
(B) a statement of the sponsor's responsibility for obtaining another sponsor, should the sponsor become unable to fulfill his/her commitments to the program for any reason. It must include a provision that a written evaluation of the trainee's performance shall be completed and submitted to the program approval committee and to the trainee by the sponsor(s) who is terminating the relationship; and
(C) a statement that recruitment and selection of applicants and participation in all programs shall be made without discrimination based on race, creed, gender, religion, national origin, or age.
(d) Sponsor guidelines for board-approved programs.
(1) The sponsor shall be a licensed or registered dietitian who has had five years of full-time experience as a licensed or registered dietitian.
(2) A sponsor may not sponsor more than one program at a time.
(e) Curriculum guidelines for board-approved programs.
(1) The curriculum of each program shall be planned and implemented primarily by the sponsoring dietetic faculty of the program. The trainee may assist in planning the curriculum.
(2) The curriculum offered shall be clearly defined in writing, and shall include statements of:
(A) goals, competencies, and specific objectives for all aspects of the program;
(B) dietetic learning experiences planned to meet the objectives; and
(C) methods and procedures planned to evaluate trainee performance in meeting the objectives.
(3) Dietetic learning experiences and work experiences in all programs shall include opportunities for decision making, development of independent judgment and professionalism, and shall require increasing levels of skill and responsibility.
(4) All programs shall include a variety of instructional methods and opportunities to strengthen the trainee's communication skills. Planned instruction implemented by the dietetic faculty shall be distributed throughout the program, and may be supplemented by classes offered by colleges and/or medical centers and by dietetic seminars and workshops.
(5) The curriculum shall include a minimum of 450 hours of work experience supervised, directed, and evaluated by a licensed or registered dietitian, as set out in §711.10(a)(4) of this title (relating to Provisional Licensed Dietitians), at a level of professional responsibility equivalent to that of a licensed dietitian, as set out in §711.4(a) of this title (relating to The Profession of Dietetics and Code of Ethics), plus a minimum of 450 hours of planned dietetic learning experiences with stated objectives divided to meet one of the following areas of specialization. All rotations must be supervised, directed, evaluated and signed off by a licensed dietitian or registered dietitian.
(A) General dietetics programs shall provide at least 40% of the curriculum in food service systems management, at least 40% of the curriculum in clinical dietetics, and at least 10% of the curriculum divided among the community, education, and consultation areas of dietetics. The program shall offer a variety of clinical services and a comprehensive range of food service systems management functions. The remaining 10% of the curriculum shall be planned to offer areas of specialization and/or career support selected by the trainee.
(B) Clinical dietetics programs shall provide at least 60% of the curriculum in clinical dietetics, at least 20% of the curriculum in food service systems management, and at least 10% of the curriculum divided among the community, education, and consultation areas of dietetics. The program shall offer a variety of clinical services, specializations, and subspecializations. The remaining 10% of the curriculum shall be planned to offer areas of specialization and/or career support selected by the trainee.
(C) Management dietetics programs shall provide at least 60% of the curriculum in food service systems management, at least 20% of the curriculum in clinical dietetics, and at least 10% of the curriculum divided among the community, education, and consultation areas of dietetics. The program shall offer different types and sizes of food service systems, including at least one production and service facility that requires managing a complete range of food service subsystems. The remaining 10% of the curriculum shall be planned to offer areas of specialization and/or career support selected by the trainee.
(D) Community nutrition programs shall provide at least 40% of the curriculum in community nutrition, at least 10% of the curriculum divided between the education and consultation areas of dietetics, at least 25% of the curriculum in clinical dietetics, and at least 15% of the curriculum in food service systems management. The primary sites for learning experiences shall include federal, state, and locally funded community health agencies. The remaining 10% of the curriculum shall be planned to offer areas of specialization and/or career support selected by the trainee.
(6) The program shall, following completion of the learning and work experiences, include rotation relief for three weeks. Rotation relief shall provide an opportunity for the trainee to demonstrate professional proficiency in the area of specialization. The sponsor, sponsoring licensed dietitian, or another licensed dietitian shall be available at reasonable times. The trainee shall perform at the level of a licensed dietitian based on the area of specialization. The rotation must be conducted for a minimum of 20 hours per week.
(f) Documentation for preplanned experience programs.
(1) The trainee shall provide to the board, at six-month intervals, a written report approved by the sponsor describing the trainee's activities.
(2) The sponsor(s) shall issue to each trainee, upon successful completion of the program, a written statement and/or certificate of accomplishment, and shall notify the executive secretary in writing of the name(s) of the trainee(s) who have completed the program and of the date the program was completed.
(3) The sponsor shall submit to the executive secretary the curriculum plan and evaluation forms provided by the board and a written statement of completion. After approval by the board or its delegate, the executive secretary shall notify the trainee that the trainee is eligible to take the examination.
(4) A record of each trainee's activities, program plan, and evaluation instruments, including the number of hours spent fulfilling curriculum plans, shall be kept by the sponsor, shall be preserved for five years, and shall be made available to examining boards and other appropriate agencies if requested.
§711.7.Examination for Dietitian Licensure.
(a) The examination for licensure is the examination given by the commission or its designee.
(b) Registered dietitians. The board shall waive the examination requirement for applicants who are registered in active status by the commission at the time of making application to the board.
(c) Applications for examination.
(1) The board shall notify an applicant whose application has been approved. The board or its designee shall forward an examination registration form to each approved applicant.
(2) An applicant who wishes to take a scheduled examination must complete the registration form and return it with the appropriate fee to the board or its designee by the established deadline.
(3) Any applicant who fails to apply for and take the licensure examination within a period of three years after an examination approval notice is mailed to the applicant may have such approval withdrawn.
(d) Locations. Examinations administered by the commission or its designee will be held in locations to be announced by the commission.
(e) Grading. Examinations administered by the commission shall be graded by the commission or its designee.
(f) Results.
(1) If the examination is graded or reviewed by a national or state testing service, the board shall notify each examinee of the examination results within 14 days of the date the board receives the results from the testing service.
(2) If examination results will be delayed for more than 90 days after the examination, the board shall notify each applicant of the reason for the delay before the 90th day.
(3) No matter what numerical or other scoring system the national or state testing service may use in arriving at examination results, the official notice of results to applicants shall be stated in terms of "pass" or "fail."
(g) Failures.
(1) An applicant who fails the examination prescribed by the board may take a subsequent examination after paying the examination fee.
(2) If requested in writing, the board shall furnish an applicant who fails an examination an analysis of performance.
(3) An applicant who fails the licensing examination three times shall have his/her application denied unless the applicant furnished the board an official transcript from an accredited college or university indicating completed course work taken for credit with a passing grade in the area(s) of weakness determined by analysis of the previous examination(s). Before the applicant will be scheduled for another examination, the applicant shall submit an official transcript showing course work completed in the area of weakness after the date of the last examination taken by the applicant.
(4) An applicant who completes course work as described in paragraph (3) of this subsection must file an updated application for examination with the application fee.
§711.8.Application Procedures.
(a) Fitness of applicants for licensure.
(1) In determining the fitness of an applicant for licensure, the board shall consider the following:
(A) the skills and abilities of an applicant to provide adequate nutrition services; and
(B) the ethical behavior of an applicant in relationships with other professionals and clients.
(2) In determining the fitness of applicants for licensure the board may request and consider any of the following:
(A) evaluations of supervisors or instructors;
(B) statements from persons submitting references for the applicant;
(C) evaluations of employers and/or professional associations;
(D) transcripts or findings from official court, hearing, or investigative proceedings; and
(E) any other information which the board considers pertinent to determining the fitness of an applicant.
(3) The substantiation of any of the following items related to an applicant may be, as the board determines, the basis for the denial of, or delay of, licensure of the applicant:
(A) lack of the necessary skills and abilities to provide adequate nutrition services;
(B) misrepresentation of professional qualifications or affiliations with associations;
(C) misrepresentation of nutrition services, dietary supplements and the efficacy of nutrition services to clients;
(D) use of misleading or false advertising;
(E) violation of any provision of any federal or state statute relating to confidentiality of client communication and/or records;
(F) abuse of alcohol or drugs or the use of illegal drugs of any kind in any manner which detrimentally affects the provision of nutrition services;
(G) any misrepresentation in application or other materials submitted to the board; and
(H) the violation of any board rule in effect at the time of application which is applicable to an unlicensed person.
(b) General.
(1) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official board forms.
(2) Proof of successfully completing the Texas Jurisprudence Exam must be submitted with the application.
(3) The board will not consider an application as officially submitted until the applicant pays the application fee. The fee must accompany the application form.
(4) The board must receive all required application materials at least 60 days prior to the date the applicant wishes to take the examination.
(5) The executive secretary will send a notice listing the additional materials required to an applicant who does not complete the application in a timely manner. An application not completed within 30 days after the date of the board's notice may be voided.
(c) Required application materials.
(1) The application form shall contain:
(A) specific information regarding personal data, social security number, birth month and day, place of employment, other state licenses and certifications held, misdemeanor and felony convictions, educational and training background, and work experience;
(B) a statement that the applicant has read the Act and board rules and agrees to abide by them;
(C) the applicant's permission to the board to seek any information or references it deems fit to determine the applicant's qualifications and fitness;
(D) a statement that the applicant, if issued a license, shall return the license certificate and license identification card to the board upon the revocation or suspension of the license;
(E) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable;
(F) a statement that the applicant understands that materials submitted in the licensure process become the property of the board and are nonreturnable; and
(G) the signature of the applicant which has been dated.
(2) The internship or preplanned professional experience program documentation form shall contain:
(A) the applicant's name;
(B) the name and address of the agency, organization, or institution where the program was undertaken (a separate form should be used for each one);
(C) the name and job title of the director or coordinator of each program at the time;
(D) the inclusive dates of the program and the number of clock hours per week;
(E) the type of setting, the type of clients served, and the type of work performed;
(F) the credentials of the director or coordinator of each program; and
(G) the signed statement(s) of endorsements from the person(s) who can formally attest to the applicant's successful completion of experience as set out in §711.6(a)(1) and (2) of this title (relating to Preplanned Professional Experience Requirements for Licensure).
(3) Applicants must submit official transcript(s) of all relevant college work.
(4) If an applicant is or has been licensed, certified, or registered in another state, territory, or jurisdiction, the applicant must submit information required by the board concerning that license, certificate, or registration on official board forms.
(5) Vitae, resumes, and other documentation of the applicant's credentials may be submitted.
(6) A provisional licensed dietitian applicant must submit a completed supervision contract.
§711.9.Determination of Eligibility for Licensure.
(a) The board may make the final determination on the eligibility of an applicant.
(b) The board may delegate approval of applications for licensing to a committee of the board.
(c) The board may delegate approval of applications for licensing to the executive secretary.
(d) The board may disapprove the application if the person has:
(1) not completed the requirement in §711.5 of this title (relating to Academic Requirements for Licensure);
(2) not completed the requirements in §711.6 of this title (relating to Preplanned Professional Experience Requirements for Licensure), if applicable;
(3) failed to pass the examination prescribed by the board as set out in §711.7 of this title (relating to Examinations for Dietitian Licensure), if applicable;
(4) failed to remit any applicable fees required in §711.3 of this title (relating to Fees);
(5) failed or refused to complete properly or submit any application form(s) or endorsement(s), or deliberately presented false information on the application form, or any other form or document required by the board to verify the applicant's qualifications for licensure;
(6) been in violation of the Act;
(7) violated a provision of the code of ethics in §711.4 of this title (relating to The Profession of Dietetics and Code of Ethics);
(8) been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee as set out in §711.17 of this title (relating to Licensing of Persons with Criminal Convictions);
(9) had a license, registration, or certificate to practice dietetics in another state or jurisdiction which has been suspended, revoked, or otherwise restricted by the licensing entity or commission; or
(10) failed to submit proof of successfully completing the Texas Jurisprudence exam as required in §711.8(b) of this title (relating to Application Procedures).
(e) If after review the executive secretary determines that the application should not be approved, the executive secretary shall give the applicant written notice of the reason for the proposed decision and of the opportunity for a formal hearing. The notice and hearing shall be in accordance with §711.18 of this title (relating to Violations, Complaints, and Subsequent Board Actions).
(f) An applicant whose application has been disapproved under subsection (d)(5) - (8) of this section shall be permitted to reapply after a period of not less than one year from the date of the disapproval and shall submit with the reapplication, proof satisfactory to the board, of compliance with all rules of the board and the provisions of the Act in effect at the time of reapplication.
(g) Processing procedures are as follows.
(1) Time periods. The board shall comply with the following procedures in processing applications for licensure and renewal.
(A) The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The time periods are as follows:
(i) letter of acceptance of application for licensure--20 working days;
(ii) letter of application deficiency--20 working days; and
(iii) issuance of license renewal after receipt of documentation of all renewal requirements--20 working days.
(B) The following periods of time shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. For the purpose of this section an application is not considered complete until any required examination has been successfully completed by the applicant. The time periods for denial include notification of the proposed decision and of the opportunity, if required, to show compliance with law and of the opportunity for a formal hearing. The time periods are as follows:
(i) letter of approval for examination--20 working days;
(ii) initial letter of approval for licensure (exam waived)--20 working days;
(iii) letter of denial of licensure--20 working days; and
(iv) issuance of license renewal after receipt of documentation of all renewal requirements--20 working days.
(2) Reimbursement of fees.
(A) In the event an application is not processed in the time periods stated in paragraph (1) of this subsection, the applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement shall be made to the executive secretary. If the executive secretary does not agree that the time period has been violated or finds that good cause existed for exceeding the time period, the request will be denied.
(B) Good cause for exceeding the time period is considered to exist if the number of applications for licensure and licensure renewal exceeds by 15% or more the number of applications processed in the same calendar quarter the preceding year; another public or private entity relied upon by the board in the application process caused the delay; or any other condition exists giving the board good cause for exceeding the time period.
(3) Appeal. If a request for reimbursement under paragraph (2) of this subsection is denied by the executive secretary, the applicant may appeal to the chair of the board for a timely resolution of any dispute arising from a violation of the time periods. The applicant shall give written notice to the chair at the address of the board that the applicant requests full reimbursement of all fees paid in that particular application process because the application was not processed within the applicable time period. The executive secretary shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time period to the chair of the board. The chair shall provide written notice of the chair's decision to the applicant and the executive secretary. An appeal shall be decided in the applicant's favor if the applicable time period was exceeded and good cause was not established. If the appeal is decided in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made.
(4) Contested cases. The time periods for contested cases related to the denial of licensure or license renewals are not included within the time periods stated in paragraph (1) of this subsection. The time period for conducting a contested case hearing runs from the date the department receives a written request for a hearing and ends when the decision of the board is final and appealable. A hearing may be completed within one to four months, but may extend for a longer period of time depending on the particular circumstances of the hearing.
§711.10.Provisional Licensed Dietitians.
(a) Sponsorship. The purpose of this section is to set out the nature and the scope of the sponsorship provided for a provisional licensed dietitian (PLD). The sponsor shall be a licensed dietitian.
(1) Sponsorship contract. The PLD must submit a contract on board forms to the board prior to the date that sponsorship is to begin. The contract shall include:
(A) the name and signature of the sponsor and the name and signature of the PLD;
(B) the license number of the sponsor and license number of the PLD if applicable;
(C) the primary location and address where nutrition services are to be rendered;
(D) a description of nutrition services to be rendered by the PLD;
(E) a statement that the sponsor and the PLD have read and agree to adhere to the requirements of this chapter; and
(F) the date that the sponsor and the PLD signed the contract.
(2) Termination. The sponsor must submit a written notification of termination of sponsorship to the board and the PLD within 14 days of when sponsorship has ceased. The PLD shall make a good faith effort to ensure that the sponsor submits the appropriate notification. The board notification of termination of sponsorship shall include:
(A) the name, license number, and signature of the sponsor and the name and license number of the PLD;
(B) a statement that sponsorship has terminated;
(C) the reason for termination;
(D) the date of termination of sponsorship; and
(E) a statement indicating whether the sponsor and the PLD have complied with the requirements of this chapter.
(3) Changes. Any change in the sponsorship contract shall require submission of a new contract.
(4) Requirements of sponsorship.
(A) The sponsor must have adequate training, knowledge, and skill to render competently any nutrition services that the PLD undertakes. The sponsor shall have discretion to refer the PLD for specific sponsorship from another licensed dietitian.
(B) The sponsor is responsible for determining the adequacy of the PLD's ability to perform the nutrition services.
(C) The sponsor may not sponsor more than three PLDs concurrently unless board approval is provided in advance.
(D) The PLD must clearly state the sponsored status to patients, clients, and other interested parties and must provide the name, address, and telephone number of the sponsor.
(E) The sponsor may not be employed by the PLD, may not lease or rent space from the PLD, and must avoid any dual relationship with the PLD which could impair the sponsor's professional judgment.
(F) The sponsor must provide each PLD with no less than one hour of regularly scheduled one-to-one, face-to-face meetings weekly, regardless of the number of hours employed per week. Group meetings are not a substitute for one-to-one meetings. A written record of the scheduled meetings must be maintained by the sponsor and include a summary of the PLD's work activities. The record shall be provided to the board on request.
(G) The sponsor must be available for discussion of any problems encountered by the PLD at reasonable times in addition to the scheduled meetings.
(H) The sponsor will provide an alternate licensed dietitian to provide sponsorship for the PLD in circumstances when the sponsor is not available for more than four continuous weeks.
(5) Payment. A PLD may not pay for sponsorship.
(b) Required sponsor. A PLD must have a sponsoring licensed dietitian at all times whether or not the PLD is actively employed.
(c) Upgrading a provisional license. The purpose of this subsection is to set out the procedure to upgrade from PLD to a licensed dietitian.
(1) The PLD who has completed a board approved experience program in accordance with §711.6 of this title (relating to Preplanned Professional Experience Requirements for Licensure) shall submit to the board a letter from the sponsor indicating the date the PLD completed the program.
(2) A PLD who becomes registered by the commission shall submit proof of current registration status with a written request to upgrade and submit the required fee for upgrade to a licensed dietitian.
(3) The requirements of sponsorship as defined in subsection (a)(4)(F) of this section, shall continue until the PLD becomes a licensed dietitian.
(d) Time limits.
(1) A provisional license is valid for one year from the date it is issued and may be renewed annually not more than twice by the procedures set out at §711.15 of this title (relating to License Renewal) except as noted in paragraph (2) of this subsection.
(2) If the PLD is actively completing the requirements of a program which meets the requirements of this section and the remainder of the program will not extend for more than a period of one additional year, the PLD may be renewed for an additional one year at the end of the second renewal, for a total of up to four years.
(e) Examination failures. An individual who fails the examination as set out in §711.7 of this title (relating to Examinations for Dietitian Licensure) three times after licensure as a PLD must complete course work taken for credit with a passing grade in the area(s) of weakness as determined by the board and within the time period established by the board.
§711.11.Qualifications of Licensed Dietitians to Provide Diabetes Self-Management Training.
(a) This section implements the Insurance Code, Article 21.53G, §4.
(b) Diabetes self-management training. Diabetes self-management training covers the following training:
(1) training provided to a qualified insured after the initial diagnosis of diabetes in the care and management of that condition, including nutrition counseling and proper use of diabetes equipment and supplies;
(2) additional training authorized on the diagnosis of a physician or other health care practitioner of a significant change in the qualified insured's symptoms or condition that requires changes in the qualified insured's self-management regimen; and
(3) periodic or episodic continuing education training when prescribed by an appropriate health care practitioner as warranted by the development of new techniques and treatments for diabetes.
(c) Providing diabetes self-management training as a member of a multi-disciplinary team.
(1) Prior to beginning to provide diabetes self-management training as member of a multi-disciplinary team under Insurance Code, Article 21.53G, §4(b)(2), a licensed dietitian must complete at least six hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.
(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall complete at least six hours of continuing education biennially in diabetes-specific or diabetes-related topics.
(3) A licensed dietitian who is not a Certified Diabetes Educator and who is providing diabetes self-management training as a member of a multi-disciplinary team under Insurance Code, Article 21.53G, §4(b)(2), shall confine his or her professional services to nutrition education and/or counseling, lifestyle modifications, the application of self-management skills, reinforcing diabetes self-management training, and other acts within the scope of his or her professional education and training which are conducted under the supervision of the coordinator of the multi-disciplinary team.
(d) Providing the nutrition component of diabetes self-management training.
(1) Prior to beginning to provide the nutrition component of diabetes self-management training under Insurance Code, Article 21.53G, §4(b)(4), a licensed dietitian must complete at least six hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.
(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall show proof to the board completion of at least six hours of continuing education biennially in diabetes-specific or diabetes-related topics.
(e) Continuing education. The continuing education completed under this section shall meet the requirements described in §711.16 of this title (relating to Continuing Education Requirements). The continuing education completed under this section may be part of the credits required for annual renewal of a license.
(f) Submission of continuing education to the board. Upon written request by the board, the licensed dietitian shall submit to the board proof of completion of the continuing education completed under this section. The licensed dietitian shall submit the proof of completion in a manner and a timeframe acceptable to the board.
(g) Provisional Licensed Dietitians. A provisional licensed dietitian shall not provide diabetes self-management training under these rules.
(h) Certified Diabetes Educator. This section does not apply to a licensed dietitian who is a diabetes educator certified by the National Certification Board for Diabetes Educators.
(i) Non-application of rules. This section does not pertain to or restrict a licensed dietitian who does not qualify under this section from providing the nutrition component of diabetes self-management training within the scope of the license issued by the board, to a person:
(1) who is not a qualified insured as defined in the Insurance Code, Article 21.53G;
(2) who does not intend to seek payment for or reimbursement for diabetes self-management training; or
(3) without the written order of a licensed physician or other healthcare practitioner.
§711.12.Licensing.
(a) Issuance of licenses.
(1) The board will send each applicant whose application has been approved and who has passed the examination (if applicable) a license certificate and identification card containing a license number.
(2) The board shall replace a lost, damaged, or destroyed license certificate or identification card upon a written request from the licensee and payment of the license replacement fee. Requests shall include a statement detailing the loss or destruction of the licensee's original license or identification card or be accompanied by the damaged certificate or card.
(b) License certificates.
(1) The board shall prepare and provide to each licensee a license certificate and identification card which contain the licensee's name, license number, and expiration date.
(2) Official license certificates shall bear the signature of the chair. Official identification cards shall bear the signatures of the chair and the licensee.
(3) Any certificate or identification card issued by the board remains the property of the board and must be surrendered to the board on demand.
(4) The license certificate must be displayed in an appropriate and public manner as follows.
(A) The license certificate shall be displayed in the primary office or place of employment of the licensee.
(B) In the absence of a primary office or place of employment, or when the licensee is employed at multiple locations, the licensee shall carry a current identification card.
(5) Neither the licensee nor anyone else shall display a photocopy of a license certificate or carry a photocopy of an identification card in lieu of the original document. A file copy shall be clearly marked as a copy across the face of the document.
(6) Neither the licensee nor anyone else shall make any alteration on a license certificate or identification card.
§711.13.Temporary License.
(a) This section sets out the application procedures for a temporary license, which may be issued to a person licensed as a dietitian by another state, territory, or jurisdiction of the United States.
(b) Requirements. An applicant for a temporary license shall submit:
(1) an application in accordance with §711.8 of this title (relating to Application Procedures) and fee in accordance with §711.3 of this title (relating to Fees);
(2) a current copy of the law and rules of the other state, District of Columbia, or territory of the United States governing its licensing and regulation of dietitians;
(3) verification acceptable to the board that the applicant has passed the commission's examination/or an examination offered by another state; the District of Columbia; or a territory of the United States for licensure as a dietitian;
(4) verification that the licensee is or will be supervised by a licensed dietitian in the same manner as set out in §711.10 of this title (relating to Provisional Licensed Dietitians); and
(5) a copy of the applicant's dietitian's license or certificate in the other state, District of Columbia, or territory of the United States and the name, address and telephone number of the licensing or certifying agency.
(c) Time limit. A temporary license is valid for 180 days, until the date the board approves or denies the temporary licensee's application for a regular license, or until the applicant is notified that he or she has failed the first examination for which the applicant was eligible, whichever is earlier. A temporary license is not subject to renewal or extension for any reason. A person whose temporary license has expired is not eligible to receive another temporary license.
(d) Status change. The board shall issue a license to the holder of a temporary license after:
(1) the temporary licensee passes the examination required for licensure by the board or becomes a registered dietitian after completion of the commission's examination; and
(2) the board verifies that the temporary licensee has met the academic requirements set out in §711.5 of this title (relating to Academic Requirements for Licensure) and the experience requirements in §711.6 of this title (relating to Preplanned Professional Experience Requirements for Licensure), if applicable.
§711.14.Changes of Name or Address.
(a) The licensee shall notify the board of changes in name or preferred mailing address within 30 days of such change(s).
(b) Notification of address changes must include the name, mailing address, and zip codes, and be mailed, telephoned, faxed, or sent by electronic mail to the board.
(c) Before another license certificate and identification card will be issued by the board, notification of name changes must be mailed or faxed to the executive secretary and shall include a copy of a marriage certificate, court decree evidencing such change, or a social security card reflecting the new name. The licensee shall remit the appropriate replacement fee as set out in §711.3 of this title (relating to Fees).
§711.15.License Renewal.
(a) General.
(1) A licensed dietitian must renew the license biennially on or before the last day of the licensee's birth month.
(2) Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification prior to the expiration date of the license shall not excuse failure to file for renewal or late renewal.
(3) The board shall not renew the license of the licensee who is in violation of the Act or board rules at the time of application for renewal.
(4) The board shall deny renewal of a license if renewal is prohibited by the Education Code, §57.491 (Loan Default Ground for Nonrenewal of Professional or Occupational License).
(5) A licensee must comply with applicable continuing education requirements in order to renew a license including the audit process described in §711.16 of this title (relating to Continuing Education Requirements).
(6) The board may refuse to renew the license of a person who fails to pay an administrative penalty imposed under the Act unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed.
(b) License renewal requirements.
(1) At least 30 days prior to the expiration date of a person's license, the department shall send notice to the licensee at the address in the department's records of the expiration date of the license, the amount of the renewal fee due and a license renewal form which the licensee must complete and return to the board with the required renewal fee.
(2) The license renewal form for all licensees shall require the provision of the preferred mailing address, primary employment address and telephone number, and misdemeanor and felony convictions.
(3) The sponsorship contract for the provisional licensed dietitian shall be signed by the sponsoring licensed dietitian. The information provided on the form shall indicate whether the sponsor and the provisional licensed dietitian have complied with §711.10 of this title (relating to Provisional Licensed Dietitians).
(4) The board shall not renew a license until it receives the renewal fee and documentation that the continuing education requirement has been met.
(5) The board shall issue to a licensee who has met all requirements for renewal a current identification card.
(c) Late renewal requirements.
(1) A person whose license has expired for less than one year may renew the license by submitting to the department the license renewal form and the appropriate late renewal fee. The postmark date shall be considered as the date of mailing.
(2) A person whose license has been expired one year or more may not renew the license. The person may obtain a new license by complying with the current requirements and procedures for obtaining an original license.
(d) Expiration of license.
(1) A person whose license has expired may not use the title or represent or imply that he or she has the title of "licensed dietitian" or "provisional licensed dietitian" or use the letters "LD" or "PLD", and may not use any facsimile of those titles in any manner.
(2) A person who fails to renew a license after one year is required to surrender the license certificate and license identification card to the board.
(e) Active duty. If a licensee fails to timely renew his or her license because the licensee is or was on active duty with the armed forces of the United States of America, the licensee may renew the license in accordance with this subsection.
(1) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal.
(2) Renewal may be requested before or after expiration of the license.
(3) A copy of the official orders or other official military documentation showing that the licensee is or was on active duty shall be filed with the board along with the renewal form.
(4) A copy of the power of attorney from the licensee shall be filed with the board along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection.
(5) A licensee renewing under this subsection shall pay the applicable renewal fee, but not the late renewal fee or any penalty fee.
(6) A licensee renewing under this subsection shall be required to submit the same amount of continuing education hours as required for regular renewal unless the licensee demonstrates to the satisfaction of the board that a hardship existed which prevented the licensee from obtaining the continuing education hours. Hardships may include medical reasons, combat duty, or assignment to a location where continuing education activities were not available.
§711.16.Continuing Education Requirements.
(a) The continuing education requirements are intended to maintain and improve the quality of services provided to the public by licensed dietitians and provisional licensed dietitians. Continuing education credit includes programs beyond the basic preparation which are designed to promote and enrich knowledge, improve skills, and develop attitudes for the enhancement of licensed dietitians and provisionally licensed dietitians, thus improving nutrition care to the public.
(b) A licensee shall complete a minimum of 12 continuing education hours during each two-year licensing period.
(1) The hours must have been completed prior to the date of expiration of the license.
(2) The hours must be offered or approved by the Commission on Dietetic Registration or its agents or a regionally accredited college or university.
(c) The licensee shall be responsible for maintaining a record of his or her continuing education experiences. The certificates, diplomas, or other documentation verifying earning of continuing education hours are not to be forwarded to the board at the time of renewal unless the licensee has been selected for audit by the board.
(d) The audit process shall be as follows.
(1) The board shall select for audit a random sample of licensees for each renewal month. Audit forms shall be sent to the selected licensees at the time the renewal notice is mailed.
(2) All licensees selected for audit will furnish documentation such as official transcripts, certificates, diplomas, agendas, programs, or an affidavit identifying the continuing education experience satisfactory to the board, to verify proof of having earned the continuing education hours. The documentation must be provided at the time the renewal form is returned to the board.
(3) Failure to timely furnish this information or knowingly providing false information during the audit process or the renewal process are grounds for disciplinary action against the licensee.
(e) Failure to complete the required continuing education.
(1) A person who fails to complete continuing education requirements for renewal holds an expired license and may not use the titles "licensed dietitian" or "provisional licensed dietitian".
(2) A person may renew late under §711.15(c) of this title (relating to License Renewal) after all the continuing education requirements have been met.
(f) Continuing education undertaken by a licensee for renewal shall be acceptable if the experience falls in one or more of the following categories:
(1) academic courses related to dietetics;
(2) clinical courses related to dietetics;
(3) in-service educational programs, training programs, institutes, seminars, workshops and conferences in dietetics;
(4) instructing or presenting continuing education programs or activities that were offered or approved by the Commission on Dietetic Registration or its agents. Multiple presentations of the same programs only count once;
(5) acceptance and participation in poster sessions offered by a nationally recognized professional organization in the dietetics field or its state equivalent organization. Participation will be credited one hour for six poster sessions with a maximum of two clock hours for 12 poster sessions;
(6) books or articles published by the licensee in relevant professional books and referred journals. A minimum of three continuing education hours will be credited for the publication; or
(7) self-study of professional materials that include self-assessment examinations. Six hours maximum will be credited for self-study during the two-year licensure period.
(g) Activities unacceptable as continuing education for which the board may not grant continuing education credit are:
(1) education incidental to the regular professional activities of a licensee such as learning occurring from experience or research;
(2) professional organization activity such as serving on committees or councils or as an officer;
(3) any continuing education activity completed before or after the period of time described in subsection (b)(1) of this section;
(4) activities described in subsection (f) of this section which have been completed more than once during the continuing education period;
(5) performance of duties that are routine job duties or requirements; or
(6) participation in conference exhibits.
(h) Continuing education experiences shall be credited as follows.
(1) Completion of course work at or through an accredited college or university shall be credited for each semester hour on the basis of two clock hours of credit for each semester hour successfully completed for credit or audit.
(2) An activity which meets the criteria of subsection (f)(2) or (3) of this section shall be credited on a one-for-one basis with CPE as approved by the American Dietetics Association.
(i) The Texas Jurisprudence Exam shall be required as follows.
(1) The licensee must successfully complete the Texas Jurisprudence Exam for renewal.
(2) Proof of successfully completing the exam must be retained by the licensee as required in subsection (c) of this section.
(3) One hour of continuing education credit will be granted for successful completion of the Texas Jurisprudence Exam.
§711.17.Licensing of Persons with Criminal Convictions.
(a) This section establishes guidelines and criteria for the eligibility of persons with criminal convictions to obtain and retain licenses as dietitians.
(b) The board shall consider the criminal conviction of a licensee or applicant as possible grounds for disciplinary action or application denial.
(c) The board may suspend or revoke an existing license, disqualify a person from receiving a license, or deny to a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee. In considering whether a criminal conviction directly relates to the profession of dietetics, the board shall consider:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to practice dietetics;
(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a dietitian. In making this determination, the board will apply the criteria outlined in Texas Occupations Code, §53.023 (relating to Additional Factors).
(d) The following felonies and misdemeanors directly relate to the duties and responsibilities of a licensee:
(1) the misdemeanor of knowingly or intentionally practicing dietetics without a license;
(2) an offense involving moral turpitude;
(3) the misdemeanor of failing to report child abuse or neglect;
(4) a misdemeanor involving deceptive business practices;
(5) the offense of assault or sexual assault;
(6) the felony offense of insurance claim fraud;
(7) a misdemeanor and/or a felony offense under various titles of the Texas Penal Code:
(A) concerning Title 5 offenses against the person;
(B) concerning Title 7 offenses against property;
(C) concerning Title 8 offenses against public administration;
(D) concerning Title 9 offenses against public order and decency;
(E) concerning Title 10 offenses against public health, safety, and morals; and
(F) concerning Title 4 offenses of attempting or conspiring to commit any of the offenses in subparagraphs (A) - (E) of this paragraph; or
(8) any other misdemeanor or felony directly relating directly relating to the duties and responsibilities of a licensee.
(e) Procedures for disciplinary action or application denial against persons with criminal convictions.
(1) The board's executive secretary will give written notice to the person that the board intends to take disciplinary action or deny the application after a hearing in accordance with the provisions of the Administrative Procedure Act, and the board's hearing procedures.
(2) If the board takes disciplinary action or denies an application under these sections, the executive secretary will give the person written notice of the reasons for the decisions.
§711.18.Violations, Complaints and Subsequent Board Actions.
(a) A complaint may be filed in writing with the board.
(b) Upon receipt of a complaint, the executive secretary shall send an acknowledgment letter to the complainant. The executive secretary may accept an anonymous complaint if there is sufficient information for the investigation.
(c) A complaints committee shall be appointed to work with the executive secretary to:
(1) review each complaint and determine whether the complaint fits within the category of a serious complaint affecting the health and safety of clients or other persons;
(2) ensure that complaints are not dismissed without appropriate consideration;
(3) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and
(4) resolve the issues of the complaint which arise under the Act or this chapter.
(d) Prior to or during an investigation, the executive secretary or his or her designee shall request a response from the licensee or person against whom an alleged violation has been filed to gather information required by the complaints committee of the board. The licensee or person against whom an alleged violation has been filed must respond within 15 working days of the executive secretary's request.
(e) If it is determined that the matters alleged in the complaint are non-jurisdictional, or if the matters alleged in the complaint would not constitute a violation of the Act or this chapter, the executive secretary may dismiss the complaint and give written notice of dismissal to the licensee or person against whom the complaint has been filed, the complainant, and the complaints committee.
(f) If it is determined that there are sufficient grounds to support the complaint, the matters in question shall be investigated. The executive secretary or the committee may initiate the investigation.
(g) If the committee determines that there are insufficient grounds to support the complaint, the committee shall dismiss the complaint and give written notice of the dismissal to the licensee or person against whom the complaint has been filed and the complainant.
(h) If a written complaint is filed with the board that the board has the authority to resolve, the board shall notify the parties to the complaint periodically of the status of the complaint unless the notice would jeopardize an undercover investigation.
(i) Disciplinary Action; Notices. The board may deny, revoke, temporarily suspend, or suspend a license, or may probate disciplinary action, or may issue a reprimand or impose an administrative penalty to a person who:
(1) violates a provision of the Act;
(2) violates a rule adopted by the board;
(3) offers to pay or agrees to accept any remuneration, directly or indirectly, to or from any person or entity for securing or soliciting a client or patronage; or
(4) is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office under the Code of Criminal Procedure, Chapter 56.
(A) Prior to institution of formal proceedings to discipline a licensee, the board shall give written notice to the licensee of the facts or conduct alleged to warrant the disciplinary action. The notice shall inform the licensee or applicant of the opportunity to retain legal representation. The licensee or applicant shall be given the opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter.
(B) If denial, revocation, or suspension of a license is proposed, the board shall give written notice of the basis for the proposal and that the licensee or applicant must request, in writing, a formal hearing within 15 working days of receipt of the notice, or the right to a hearing shall be waived and the license shall be denied, revoked, or suspended.
(C) Receipt of a notice under subsection (b) or (c) of this section is presumed to occur on the tenth working day after the notice is mailed to the last address known to the board unless another date is reported by the United States Postal Service.
(j) Cease and Desist Order. If it appears to the board that a person who is not licensed under the Act is violating the Act, a rule adopted under the Act, or another state statute or rule relating to the practice of dietetics, the board, after notice and an opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity.
(k) Assessment of Administrative Penalties. The assessment of an administrative penalty is governed by the Act. The amount of an administrative penalty shall be based on the following criteria.
(1) The seriousness of a violation shall be categorized by one of the following severity levels:
(A) Level I--violations that have or had an adverse impact on the health or safety of a client (or former client, where applicable);
(B) Level II--violations that have or had the potential to cause an adverse impact on the health or safety of a client (or former client, where applicable) but did not actually have an adverse impact; or
(C) Level III--violations that have no or minor health or safety significance.
(2) The range of administrative penalties by severity levels is as follows:
(A) Level I--up to $5,000 per day;
(B) Level II--up to $2,500 per day; or
(C) Level III--up to $1,250 per day.
(3) Subsequent violations in the same severity level for which an administrative penalty has previously been imposed shall be categorized at the next higher severity level.
(4) Adjustments to the range of an administrative penalty may be made for:
(A) prompt reporting;
(B) corrective action;
(C) compliance history; or
(D) multiple violations.
(l) Suspension, Temporary Suspension, Revocation, or Denial.
(1) If the board suspends a license, the suspension shall remain in effect for the period of time stated in the order or until the board determines that the reason for the suspension no longer exists.
(2) If a suspension overlaps a license renewal date, the person suspended shall comply with the renewal procedures in this chapter; however, the suspension shall remain in effect pursuant to subsection (a) of this section.
(3) Upon the revocation, suspension or non-renewal of a license, a licensee shall return his or her license certificate and all existing renewal cards to the executive secretary.
(4) The board or the complaints committee of the board may suspend a license on an emergency basis.
(m) Emergency Suspension. The board or a three-member committee of board members designated by the board shall temporarily suspend the license of a license holder if the board or committee determines from the evidence or information presented to it that continued practice by the license holder would constitute a continuing and imminent threat to the public welfare.
(1) A license may be suspended under this section without notice or hearing on the complaint if:
(A) action is taken to initiate proceedings for a hearing before the State Office of Administrative Hearings simultaneously with the temporary suspension; and
(B) a hearing is held as soon as practicable as described in paragraph (2) of this subsection and Texas Government Code, Chapter 2001.
(2) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine if there is probable cause to believe that a continuing and imminent threat to the public welfare still exists. A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension.
(n) Monitoring of Licensees.
(1) The executive secretary shall maintain a complaint tracking system.
(2) A licensee that has had disciplinary action taken against his or her license may be required to submit regularly scheduled reports to the executive secretary.
(3) The executive secretary shall review the reports and shall provide the reports to the complaints committee.
(4) The complaints committee may consider more severe disciplinary proceedings if the licensee fails to comply with the provisions of a disciplinary order.
§711.19.Formal Hearings.
(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, Chapter 2001.
(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, Chapter 2001.
(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 Action after the Hearing.
(f) Motion for rehearing. A motion for rehearing shall be governed by the APA or other pertinent statute and shall be filed with the board.
(g) Appeals. All appeals from final board orders or decisions shall be governed by the APA or other pertinent statute and shall be addressed to the board.
§711.20.Informal Disposition.
(a) Informal disposition of any complaint or contested case involving a licensee or an applicant for licensure may be made through an informal conference held to determine whether the matters in controversy can be resolved without further proceedings.
(b) The decision to hold a conference shall be within the discretion of the executive secretary or a member of the complaints committee.
(c) An informal conference shall be voluntary and shall not be a prerequisite to a formal hearing.
(d) The executive secretary shall establish the time, date and place of the informal conference, and provide written notice to the licensee or applicant. Notice shall be provided no less than 10 working days prior to the date of the informal conference by certified mail, return receipt requested to the last known address of the licensee or applicant. The licensee or applicant may waive the 10-day notice requirement.
(e) The notice shall inform the licensee or applicant of the nature of the alleged violation or the reason for application denial; that the licensee may be represented by legal counsel; that the licensee or applicant may offer the testimony of witnesses and present other evidence as may be appropriate within time limits set by the executive secretary; that the board's legal counsel shall be present; that the licensee's or applicant's attendance and participation is voluntary; and that the informal conference shall be canceled if the licensee or applicant notifies the executive secretary that he or she or his or her legal counsel will not attend. A copy of the board's rules concerning informal disposition shall be enclosed with the notice of the informal conference.
(f) At least one member of the complaints committee shall be present at an informal conference.
(g) The conference shall be informal and shall not follow the procedures established in this chapter for contested cases and formal hearings.
(h) The licensee, the licensee's attorney, the board's attorney, the executive secretary and the complaints committee member may question witnesses, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate.
(i) The board's legal counsel may attend each informal conference. The complaints committee member or executive secretary may call upon the attorney at any time for assistance in the informal conference.
(j) The licensee shall be afforded the opportunity to make statements that are material and relevant.
(k) The complaints committee member or the executive secretary may exclude anyone from all or part of the informal conference.
(l) Any written statement submitted by the complainant shall be reviewed at the conference.
(m) At the conclusion of the informal conference, the complaints committee member or the executive secretary may make recommendations for informal disposition of the complaint or contested case. The recommendations may include any disciplinary action authorized by the Act or this chapter. The complaints committee member may also conclude that the board lacks jurisdiction; conclude that a violation of the Act or this chapter has not been established; order that the investigation be closed; or refer the matter for further investigation.
(n) The licensee or applicant may either accept or reject the recommendations at the informal conference. If the recommendations are accepted, an agreed order shall be prepared by the board office or the board's legal counsel and forwarded to the licensee or applicant. The order may contain agreed findings of fact and conclusions of law. The licensee or applicant shall execute the order and return the signed order to the board office within 10 working days of his or her receipt of the order. If the licensee or applicant fails to return the signed order within the stated time period, the inaction shall constitute rejection of the recommendations.
(o) If the licensee or applicant signs and accepts the proposed recommendations, the agreed order shall be submitted to the complaints committee and the board for approval. Placement of the agreed order on the committee and board agendas shall constitute only a recommendation for approval by the board.
(p) The identity of the licensee or applicant shall not be made available to the board until after the board has reviewed and accepted the agreed order unless the licensee or applicant chooses to attend the board meeting. The licensee or applicant shall be notified of the date, time, and place of the board meeting at which the proposed agreed order will be considered. Attendance by the licensee or applicant is voluntary.
(q) Upon an affirmative majority vote, the board shall enter an agreed order approving the accepted recommendations. The board may not change the terms of a proposed order but may only approve or disapprove an agreed order unless the licensee or applicant is present at the board meeting and agrees to other terms proposed by the board.
(r) If the board does not approve a proposed agreed order, the licensee or applicant shall be so informed. The matter shall be referred to the executive secretary for other appropriate action.
(s) A proposed agreed order is not effective until the board has approved the agreed order and the order is signed by the board chair.
(t) A licensee's opportunity for an informal conference under this section shall satisfy the requirement of the APA, Texas Government Code, §2001.054(c).
(u) Refund Order.
(1) The board may order a license holder to pay a refund to a client or other payer as provided in an agreement resulting from an informal settlement conference instead of, or in addition to, imposing an administrative penalty under this chapter.
(2) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the client or other payer paid to the license holder for a service regulated by this chapter. The board may not require payment of other damages or estimate harm in a refund order.
§711.21.Default Orders.
(a) Waiver of right to hearing. If a right to a hearing is waived, the board shall consider an order taking appropriate disciplinary action as described in the written notice to the licensee or applicant.
(b) Notification. The licensee or applicant and the complainant shall be notified of the date, time, and place of the board meeting at which the default order will be considered. Attendance is voluntary.
(c) Board order. Upon an affirmative majority vote, the board shall enter an order imposing appropriate disciplinary action.
§711.22.License Suspension or Denial Relating to Child Support and Child Custody.
(a) On receipt of a final court or attorney general's order suspending a license due to failure to pay child support or for failure to comply with the terms of a court order providing for the possession of or access to a child, the executive secretary shall immediately determine if the board has issued a license to the obligator named in the order, and, if a license has been issued:
(1) record the suspension of the license in the board's records;
(2) report the suspension as appropriate; and
(3) demand surrender of the suspended license.
(b) The board shall implement the terms of a final court or attorney general's order suspending a license without additional review or hearing. The board will provide notice as appropriate to the licensee or to others concerned with the license.
(c) The board may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Family Code, Chapter 232, and may not review, vacate, or reconsider the terms of an order.
(d) A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the board.
(e) If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal renewal procedures in the Act and this chapter; however, the license will not be renewed until subsections (g) and (h) of this section are met.
(f) An individual who continues to engage in the practice of dietetics or continues to use the titles "Licensed Dietitian," or the initials "L.D.," after the issuance of a court or attorney general's order suspending the license is liable for the same civil and criminal penalties provided for engaging in the prohibited activity without a license or while a license is suspended as any other license holder of the board.
(g) On receipt of a court or attorney general's order vacating or staying an order suspending a license, the executive secretary shall promptly issue the suspended license to the individual if the individual is otherwise qualified for the license.
(h) The individual shall pay a reinstatement fee in an amount equal to the annual renewal fee set out in §711.3 of this title (relating to Fees) prior to issuance of the license under subsection (g) of this section.
(i) In accordance with the Family Code §232.0135, the board shall deny the license renewal application of a license holder who has failed to pay child support or failed to comply with the terms of an order providing for the possession of or access to a child.
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 13, 2009.
TRD-200900637
Janet Hall
Chair
Texas State Board of Examiners of Dietitians
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 458-7111 x6972