22 TAC §§213.1- 213.26, 213.30 - 213.33
The Board of Nurse Examiners for the State of Texas proposes
the adoption of a new 22 TAC §§213.1- 213.26 and 213.30 - 213.33.
These rules concern the Practice and Procedure of the Board of Nurse Examiners
and are being proposed concomitant with the repeal of the current §§213.1-
213.26 and 213.30 - 213.33. This proposed adoption is being done pursuant
to the Board's rule review published in the April 5, 2002,
Texas Register
(27 TexReg 2845).
The Board of Nurse Examiners reviewed the rules governing practice and
procedure and determined that some of the sections of the existing rule warranted
clarification, simplification, updating, and changes to address certain provisions
which were found to be inadequate in application. The review of these sections
required implementation of wording that more accurately reflected the current
statutory provisions, and complied with amendments to existing laws and new
statutes and rules which have been enacted since chapter 213's last adoption.
The Board updated the current sections with applicable Administrative Procedure
Act (APA) statutes, the newly adopted State Office of Administrative Hearings
(SOAH) rules, and the Texas Rules of Civil Procedure. The language was also
broadened to include the multistate language in chapter 304 of the Texas Occupations
Code (Nurse Licensure Compact). Additionally, the enabling statutes, other
state agencies, the Administrative Law Handbook, and other state nursing board
rules were reviewed for applicability and wording. The proposed rules will
specifically affect the provisions governing default proceedings, §§213.14(d)-(g),
213.16(c)-(f); motions to set aside default judgments, §213.22(i)(1);
probation §213.24(c)-(e); the informal conference, §213.20(d); and
the effect of a deferred adjudication, §§213.1(12), 213.30(f). As
a result, the Board of Nurse Examiners has determined that the proposed adoption
of the current sections are warranted.
The proposed adoption of §§213.1- 213.26 and 213.30 - 213.33
is made subject to §2001.039 of the Texas Government Code requiring rule
review within four (4) years of the date of a rule's adoption. This proposed
adoption is intended to comply with the requisite review of Rule 213.
Katherine Thomas, executive director, has determined that for the first
five-year period the proposed sections are adopted there will be no fiscal
implications for state or local government as a result of enforcing or administering
the section.
Katherine Thomas, executive director, has determined that for each year
of the first five years the proposed sections are adopted, the public benefit
will be that registered nurses will have a better understanding of the necessary
procedural requirements because of the updated new proposed sections. There
will be no effect on small businesses. There is no anticipated economic cost
to persons who are required to comply with the proposed repealed sections.
Written comments on the proposal may be submitted to Katherine A. Thomas,
MN, RN, Executive Director, Board of Nurse Examiners, PO Box 430, Austin,
Texas 78767- 0430.
The proposed adoption of these sections is done pursuant to Texas
Occupations Code §301.151 which authorizes the board to propose rules
necessary for the performance of its duties.
No other statutes, articles, or codes will be affected by these proposed
sections.
§213.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Act--The Nursing Practice Act or NPA, Tex. Occ. Code Ann. §§301.001-
301.607; 303.001-304.014.
(2)
Address of record--The address of each licensee as provided
to the Board of Nurse Examiners (as required by Board rules relating to Change
of Name and/or Address) and currently found in 22 Tex. Admin. Code §217.7.
(3)
Administrative Law Judge or judge--An individual appointed
by the chief administrative law judge of the State Office of Administrative
Hearings to preside over administrative hearings pursuant to Tex. Gov't Code
Ann, chapter 2003, §2003.041. The term shall also include any temporary
administrative law judge appointed by the chief administrative law judge pursuant
to Tex. Gov't Code Ann. §2003.043.
(4)
Adverse licensure action--Any action to fine, reprimand,
warn, limit, probate, revoke, suspend, or otherwise discipline a license or
multistate licensure privilege. The term includes an order accepting a voluntary
surrender in lieu of disciplinary action.
(5)
Answer--A responsive pleading.
(6)
APA--Administrative Procedures Act, Texas Government Code
Annotated ch. 2001.
(7)
Attorney of record--A person licensed to practice law in
Texas who has provided the staff with written notice of representation.
(8)
Board--The Board of Nurse Examiners appointed pursuant
to Tex. Occ. Code Ann. §301.051. For purposes of this section, "Board"
also includes a three member standing committee designated by the Board to
determine matters of eligibility for licensure and discipline of licensees.
(9)
Client--See Patient.
(10)
Complaint--Written accusations made by any person, or
by the Board on its own initiative, alleging that a licensee's conduct may
have violated the NPA.
(11)
Contested case--A proceeding including, but not restricted
to rate making and licensing, in which the legal rights, duties or privileges
of a party are to be determined by an agency after an opportunity for adjudicative
hearing.
(12)
Conviction--The result of a criminal proceeding wherein
an individual, based on a plea or verdict, is adjudged guilty of the offense
charged, or has been placed on probation with or without an adjudication of
guilt, or has received an order of deferred adjudication.
(13)
Declaratory order--An order, issued by the Board pursuant
to Tex. Occ. Code Ann. §301.257, determining the eligibility of an individual
for initial licensure as a registered nurse and setting forth both the basis
for potential ineligibility and the Board's determination of the disclosed
eligibility issues.
(14)
Default proceeding--The issuance of a proposal for decision
or an order in which the factual allegations against the respondent in a contested
case are deemed admitted as true upon the respondent's failure to appear at
a properly noticed hearing, or failure to file a response to the Notice of
Complaint.
(15)
Eligibility and Disciplinary Committee--A three member
committee organized in accordance with 22 Tex. Admin. Code §211.6 and
authorized by the Board to make a final disposition of licensure eligibility
and disciplinary matters including temporary suspension.
(16)
Eligibility matter--A proceeding by which an individual
requests licensure (such as by Petition for Declaratory Order, Application
for Examination, Application for Endorsement), Reinstatement, Reissuance,
or Renewal.
(17)
Executive director--The executive director of the Board
of Nurse Examiners.
(18)
Formal charges--Pleading of the staff publicly alleging
the reasons for disciplinary actions against a registered nurse created in
accordance with Tex. Occ. Code Ann. 301.458.
(19)
Hearing--A public adjudicative proceeding at the State
Office of Administrative Hearings.
(20)
Informal conference--A non-public settlement meeting conducted
by the executive director or designee to resolve a disciplinary or eligibility
matter pending before the Board.
(21)
Initial licensure--The original grant of permission to
practice professional nursing in Texas, regardless of the method through which
licensure was sought.
(22)
License--Includes the whole or part of any Board permit,
certificate, approval, registration, or similar form of permission required
by law to practice professional nursing in the State of Texas. For purposes
of this subchapter, the term includes a multistate licensure privilege.
(23)
Licensee--A person who has met all the requirements to
practice as a registered nurse pursuant to the Nursing Practice Act and the
Rules and Regulations relating to Professional Nurse Education, Licensure
and Practice and has been issued a license to practice professional nursing
in Texas. For purposes of this subchapter, the term includes a person who
practices pursuant to a multistate licensure privilege.
(24)
Licensing--Includes the Board's process with respect to
the granting, denial, renewal, revocation, suspension, annulment, withdrawal,
amendment of a license, or multistate licensure privilege.
(25)
Minor Incident--Conduct in violation of the Nursing Practice
Act, which after a thorough evaluation of factors enumerated under rule 217.16
of this title (Minor Incidents), indicates that the nurse's continuing to
practice professional nursing does not poses a risk of harm to a client or
other person and, therefore, does not need to be reported to the Board or
peer review committee.
(26)
Multistate Licensure Privilege--See Tex. Occ. Code Ann. §304.001,
art. 1(h)(definition of Multistate Licensure Privilege). For purposes of this
subchapter, the multistate licensure privilege means the privilege to practice
as a professional nurse in the state of Texas based on the current, official
authority to practice as a registered nurse in another state that has enacted
the Nurse Licensure Compact, Tex. Occ. Code Ann. ch. 304.
(27)
Order--A written decision of the Board, regardless of
form, signed by the Board or the executive director on its behalf.
(28)
Party--A person who holds a license issued by the Board
of Nurse Examiners or a multistate licensure privilege, a person who seeks
to obtain, retain, modify his or her license, or a multistate licensure privilege,
or the Board of Nurse Examiners.
(29)
Patient--An individual under the care and treatment of
a health care professional either at a health care facility or in his/her
own home.
(30)
Person--Any individual, representative, corporation, or
other entity, including any public or non-profit corporation, or any agency
or instrumentality of federal, state, or local government.
(31)
Petitioner--A party, including the staff, who brings a
request or action and assumes the burden of going forward with an administrative
proceeding; e.g., the staff in an action to discipline a licensee, the person
who seeks reinstatement of a license, or the person who seeks a determination
of eligibility for licensure.
(32)
Pleading--A written document submitted by a party, or
a person seeking to participate in a case as a party, which requests procedural
or substantive relief, makes claims, alleges facts, makes legal argument,
or otherwise addresses matters involved in the case.
(33)
Reinstatement--The process of reissuing and restoring
a license to active status that has been previously suspended, revoked, or
voluntarily surrendered.
(34)
Respondent--A party, including the staff, to whom a request
is made or against whom an action is brought, e.g.,; the licensee in a disciplinary
action by the staff, the person who holds a multistate licensure privilege
in a disciplinary action by the staff, the Board in a reinstatement action,
or the Board in an action to determine eligibility for licensure.
(35)
Rule--Any agency statement of general applicability that
implements, interprets, or prescribes law or policy, or describes the procedure
or practice requirements of a state agency. The term includes the amendment
or repeal of a prior rule, and does not include statements regarding only
the internal management or organization of any agency and not affecting private
rights or procedures.
(36)
SOAH--The State Office of Administrative Hearings.
(37)
Staff--The staff of the Board, not including the executive
director. For purposes of these rules, the staff may act through the legal
counsel.
(38)
Technical error--A judge's misinterpretation or misapplication
of sound nursing principles or minimum nursing practice standards in a proposal
for decision that must be corrected to sufficiently protect the public.
§213.2.Construction.
(a)
Unless otherwise expressly provided, the past, present
or future tense shall each include the other; the masculine, feminine, or
neuter gender shall each include the other; and the singular and plural number
shall each include the other.
(b)
These rules apply to all contested cases within the Board's
jurisdiction and shall control practice and procedure before the Board and
SOAH, unless pre-empted by rules promulgated by SOAH.
(c)
Words and phrases shall be read in context and construed
according to the rules of grammar and common usage. Words and phrases that
have acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed otherwise.
(d)
A reference in statute revised by the Texas Occupations
Code is considered to be a reference to the part of the Texas Occupations
Code that revises that statute or part of statute.
(e)
A reference in a rule or part of a rule revised by this
subchapter is considered to be a reference to the part of this subchapter
that revises that rule or part of that rule.
§213.3.Pleading.
(a)
In disciplinary matters:
(1)
In actions by the staff as petitioner against a licensee,
the staff's pleading shall be styled "Formal Charges."
(2)
Except in cases of temporary suspension and injunction,
formal charges shall be filed only after notice of the facts or conduct alleged
to warrant the intended action has been sent to the licensee's address of
record and the licensee has an opportunity to show compliance with the law
for retention of the license as provided in the APA, Texas Government Code §2001.054(c).
(b)
In nondisciplinary matters:
(1)
In actions by the staff as petitioner to enforce and regulate
matters the staff's pleading shall ordinarily be styled "Petition of the Board
of Nurse Examiners."
(2)
In actions by a person as petitioner, e.g., an individual
seeking a determination of eligibility for licensure, examination or licensure
applicant, or an individual seeking reinstatement of a surrendered, revoked
or suspended license, the person's pleading shall be styled "Petition of NAME."
The person shall have the burden of initiating the action, going forward with
the administrative proceeding and proving the allegations contained in the
pleading. The Board at its discretion, may initiate proceedings before SOAH
without relieving petitioner of the burden of proof as outlined herein. If
the Board has provided the petitioner with written notice of the basis of
its refusal or denial of license, permit, application or petition, the Board
may file an answer incorporating this notice and may rely on the notice as
a responsive pleading.
§213.4.Representation.
(a)
A person may represent himself/herself or be represented
by an attorney licensed to practice law in Texas.
(b)
A party's attorney of record shall remain the attorney
of record in the absence of a formal request to withdraw and an order of the
judge approving the request.
(c)
Notwithstanding the above, a party may expressly waive
the right to assistance of counsel.
§213.5.Appearance.
(a)
Any person appearing before the Board in connection with
a contested case shall prefile written testimony at least 21 days prior to
the appearance.
(b)
In disciplinary and eligibility matters, appearances in
contested cases may be made only by a party.
(c)
In disciplinary and eligibility matters, a non-party may
file an amicus brief with the executive director, with contemporaneous filing
at SOAH if SOAH has acquired jurisdiction. Non-parties who file under this
provision must disclose:
(1)
their identities including name, address, telephone number,
licensure, certification status;
(2)
their interest in the disciplinary or eligibility matter;
(3)
the identity of their members, subscribers, clients, constituents;
(4)
the identity of the persons or entities that may be benefitted
by the position taken by the amicus;
(5)
the identity of the persons or entities that may be injured
or disadvantaged by the position taken by the amicus; and
(6)
the financial impact of the position taken by the amicus.
§213.6.Agreements in Writing.
Unless otherwise provided by the NPA or these rules, no agreement between
attorneys or parties concerning any action or matter pending before the Board
will be enforced unless it is in writing, signed and filed with the papers
as a part of the record, or unless it is made in open hearing and entered
on record.
§213.7.Final Disposition.
Except for matters expressly delegated to the executive director, no
agreed order regarding eligibility or discipline shall be final or effective
until approved by the Board.
§213.8.Filing of Documents.
(a)
The original of all applications, petitions, complaints,
motions, protests, replies, answers, notices, and other pleadings relating
to any proceeding pending or to be instituted before the Board shall be filed
with the executive director or designee. The date of filing is the date of
actual receipt at the office of the Board.
(b)
The original of all documents are to be filed at SOAH only
after it acquires jurisdiction. (See §213.22(a) of this title relating
to Formal Proceedings and SOAH rules, 1 TAC §155.7 relating to Jurisdiction).
Filings and service to SOAH shall be directed to: Docket Division, State Office
of Administrative Hearings, 300 West 15th Street, Room 504, P.O. Box 13025,
Austin, Texas 78711-3025. Copies of all documents filed at SOAH must be contemporaneously
served on the Board.
§213.9.Computation of Time.
(a)
In computing any period of time prescribed or allowed by
these rules, by order of the Board, or by any applicable statute, the day
of the act, event, or default which the designated period of time begins to
run is not to be included. The last day of the period is to be included, unless
it is a Saturday, Sunday, an official State holiday, or another day on which
SOAH or the Board office is closed, in which case the time period will be
deemed to end on the next day that SOAH or the Board office is open. When
these rules specify a deadline or set a number of days for filing documents
or taking other actions, the computation of time shall be by calendar days
rather than business days, unless otherwise provided for by these rules, applicable
law, SOAH rules, or judge order. However, if the period specified is five
(5) days or less, the intervening Saturdays, Sundays, and legal holidays are
not counted.
(b)
Extension. When by these rules, SOAH rules, or judge order,
an act is required or allowed to be done at or within a specified time, the
executive director or judge (if SOAH has acquired jurisdiction) may, for cause
shown, order the period enlarged if application is made before the expiration
of the specified period. In addition, where good cause is shown for the failure
to act within the specified time period, the executive director or the judge
may permit the act to be done after the expiration of the specified period.
§213.10.Notice and Service.
(a)
Notice must be in writing and addressed to the party. Notice
to a licensee is effective and service is complete when sent by certified
or registered mail, return receipt requested, to the licensee's address of
record at the time of the mailing.
(b)
Notice to a party holding a multistate licensure privilege
is effective and service is complete when sent by certified or registered
mail, return receipt requested, to the privilege holder's address of record
maintained with the home state registered nurse licensing agency at the time
of the mailing.
(c)
Notice to a non-licensee is effective and service is complete
when sent by certified or registered mail, return receipt requested, to the
person's address as stated on his/her petition, application, or other pleading.
(d)
Notice to any person other than the Board is effective
and service is complete when sent by certified or registered mail, return
receipt requested, to the person's attorney of record.
(e)
Notice of a hearing in a contested case must comply with
Texas Government Code §2001.052 (Texas Administrative Procedure Act).
Service is complete when made pursuant to 1 Texas Administrative Code §155.25
(SOAH).
§213.11.Non-SOAH Motion for Continuance.
(a)
No continuance shall be granted except for sufficient cause
supported by affidavit as detailed in subsection (b) of this section, by consent
of the parties, or by operation of law. A party that files a motion for continuance
fewer than 10 days before the date of the event specified in any non SOAH
notice, must contact the other party and indicate in the motion whether there
is any opposition to the motion.
(b)
The motion shall be supported by a sworn affidavit detailing
the reasons for the continuance. The affidavit shall also set forth the specific
grounds upon which the party seeks the continuance and that the continuance
is not sought for delay, but so that justice may be served.
(1)
If the ground of such application is the need for testimony,
the party requesting the continuance shall make an affidavit stating that
such testimony is material, shall show the materiality thereof, shall state
that he or she has used due diligence to procure such testimony, stating such
diligence, and shall state the cause of failure, if known, and shall state
that such testimony cannot be procured from any other source.
(2)
If it be for the absence of a witness, the party requesting
the continuance shall state the name and residence of the witness, and what
the party requesting the continuance expects to prove by such witness.
(3)
If it be for the reason of a conflicting setting, the party
requesting the continuance shall identify the conflict by style, cause number,
court, agency, nature of setting and date the conflicting setting was made.
§213.12.Witness Fees and Expenses.
A witness who is not a party to the proceeding and who is subpoenaed
to appear at a deposition or hearing or to produce books, papers, or other
objects, shall be entitled to receive reimbursement for expenses incurred
in complying with the subpoena, either the minimum as set by the legislature
in the APA, Tex. Gov't Code Ann. §2001.103, or the State of Texas Travel
Allowance Guide issued by the Comptroller of Public Accounts, whichever is
greater.
§213.13.Complaint Investigation and Disposition.
(a)
Complaints shall be submitted to the Board in writing and
should contain at least the following information: RN/Respondent Name, License
Number, Social Security Number, Date of Birth, Employer, Dates of Occurrence(s),
Description of Facts or Conduct, Witnesses, Outcome, Complainant Identification
(Name, Address, and Telephone Number), and Written Instructions For Providing
Information to the Board. Complaints may be made on the agency's complaint
form.
(b)
A preliminary investigation shall be conducted to determine
the identity of the person named or described in the complaint.
(c)
Complaints shall be assigned a priority status:
(1)
Priority 1 - those indicating that credible evidence exists
showing a guilty plea, with or without an adjudication of guilt, or conviction
of a serious crime involving moral turpitude, a violation of the NPA involving
actual deception, fraud or injury to clients or the public or a high probability
of immediate deception, fraud or injury to clients or the public;
(2)
Priority 2 - those indicating that credible evidence exists
showing a violation of the NPA involving a high probability of potential deception,
fraud or injury to clients or the public;
(3)
Priority 3 - those indicating that credible evidence exists
showing a violation of the NPA involving a potential for deception, fraud
or injury to clients or the public; and
(4)
Priority 4 - all other complaints.
(d)
Not later than the 30th day after a complaint is received,
the staff shall place a time line for completion, not to exceed one year,
in the investigative file and notify all parties to the complaint. Any change
in time line must be noted in the file and all parties notified of the change
not later than seven days after the change was made. For purposes of this
rule, completion of an investigation in a disciplinary matter occurs when:
(1)
staff determines insufficient evidence exists to substantiate
the allegation of a violation of the NPA, Board's rules or a Board order;
or
(2)
staff determines sufficient evidence exists to demonstrate
a violation of the NPA, Board's rules, or a Board order and drafts proposed
formal charges.
(e)
Staff shall conduct a criminal background search of the
party described in the complaint.
(f)
The staff shall provide summary data of complaints extending
beyond the complaint time line to the executive director.
§213.14.Preliminary Notice to Respondent in Disciplinary Matters.
(a)
Except for proceedings conducted pursuant to the authority
of Tex. Occ. Code Ann. §301.455 (Temporary Suspensions) or unless it
would jeopardize the investigation, prior to commencing disciplinary proceedings
under §213.15 of this title, the staff shall serve the respondent with
written notice in accordance with Tex. Gov't Code §2001.054(c).
(b)
Such notice shall contain a statement of the facts or conduct
alleged to warrant an adverse licensure action. The notice shall invite the
respondent to show compliance with all requirements of the law for retention
of the license.
(c)
Respondent shall file a written response within 20 days
after service of the notice specified in subsection (a) of this section.
(d)
If the Respondent fails to file a response to the Notice
of Complaint, the matter will be considered as a default case
(e)
In a case of default, the Respondent will be deemed to
have
(1)
admitted all the factual allegations in the Notice of Complaint;
(2)
waived the opportunity to show compliance with the law;
(3)
waived the opportunity for a hearing on the Complaint;
and
(4)
waived objection to the recommended sanction in the Notice
of Complaint.
(f)
The Executive Director may recommend that the Board enter
a default order, based upon the allegations set out in the Notice of Complaint,
that adopts the sanction that was recommended in the Notice of Complaint.
(g)
Upon consideration of the case, the Board may:
(1)
enter a default order under §2001.056 of the APA;
or
(2)
order the matter to be set for a hearing at SOAH.
§213.15.Commencement of Disciplinary Proceedings.
(a)
If a complaint is not resolved informally, the staff may
commence disciplinary proceedings by filing formal charges.
(b)
The formal charges shall contain the following information:
(1)
the name of the respondent and his or her license number;
(2)
a statement alleging with reasonable certainty the specific
act or acts relied on by the Board to constitute a violation of a specific
statute, Board rule or Board order; and
(3)
a reference to the section of the Act or to the Board's
rule, regulation, or order which respondent is alleged to have violated.
(c)
When formal charges are filed, the executive director shall
serve respondent with a copy of the formal charges. The notice shall state
that respondent shall file a written answer to the formal charges that meets
the requirements of §213.16 of this title (Respondent's Answer in a
Disciplinary Matter).
(d)
The staff may amend the formal charges at any time permitted
by the APA. A copy of any formal amended charges shall be served on the respondent.
The first charges filed shall be entitled "formal charges," the first amended
charges filed shall be entitled "first amended formal charges," and so forth.
(e)
Formal charges may be resolved by agreement of the parties
at any time.
§213.16.Respondent's Answer in a Disciplinary Matter.
(a)
The respondent in a disciplinary matter shall file an answer
to the formal charges and to every amendment thereof.
(b)
The answer shall admit or deny each of the allegations
in the charges or amendment thereof. If the respondent intends to deny only
a part of an allegation, the respondent shall specify so much of it is true
and shall deny only the remainder. The answer shall also include any other
matter, whether of law or fact, upon which respondent intends to rely for
his or her defense.
(c)
If the Respondent fails to file a response to the Formal
charges, the matter will be considered as a default case
(d)
In a case of default, the Respondent will be deemed to
have
(1)
admitted all the factual allegations in the Formal charges;
(2)
waived the opportunity to show compliance with the law;
(3)
waived the opportunity for a hearing on the Formal charges;
and
(4)
waived objection to the recommended sanction in the Formal
charges.
(e)
The Executive Director may recommend that the Board enter
a default order, based upon the allegations set out in the Formal charges,
that adopts the sanction that was recommended in the Formal charges.
(f)
Upon consideration of the case, the Board may:
(1)
enter a default order under §2001.056 of the APA;
or
(2)
order the matter to be set for a hearing at SOAH.
(g)
The respondent may amend his or her answer at any time
permitted by the APA or SOAH rules.
(h)
The first answer filed shall be entitled "answer," the
first amended answer filed shall be entitled "first amended answer," and so
forth.
§213.17.Discovery.
(a)
Parties to administrative proceedings shall have reasonable
opportunity and methods of discovery described in the Texas Administrative
Procedure Act (APA), Chapter 2001, Texas Government Code, the Texas Nursing
Practice Act (NPA), and SOAH rule, 1 Tex. Admin. Code §155.31 (Discovery).
Matters subject to discovery are limited to those which are relevant and material
to issues within the Board's authority as set out in the NPA. Subject to prior
agreement of parties or unless explicitly stated in Board rules, responses
to discovery requests, except for notices of depositions, shall be made within
20 days of receipt of the request.
(b)
Parties may obtain discovery by request for disclosure,
as described by Tex. R. Civ. P. 194, oral or written depositions, written
interrogatories to a party, requests of a party for admission of facts and
the genuineness of identity of documents and things, requests and motions
for production, examination, and copying of documents and other tangible materials,
motion for mental or physical examinations, and requests and motions for entry
upon and examination of real property.
(c)
Parties are encouraged to make stipulations of evidence
where possible and to agree to methods and time lines to expedite discovery
and conserve time and resources.
§213.18.Depositions.
(a)
The deposition of any witness may be taken upon a commission
issued by the executive director upon the written request of any party, a
copy of which shall be served on the non-requesting party.
(b)
The written request shall contain the name, address, and
title, if any, of the witness; a description of the books, records, writings,
or other tangible items the requesting party wishes the witness to produce
at the deposition; the date and location where the requesting party wishes
the deposition to be taken; and a statement of the reasons why the deposition
should be taken and the items produced.
(c)
Depositions may be taken by telephone and by non-stenographic
recording. The recording or transcript thereof may be used by any party to
the same extent as a stenographic deposition, provided all other parties are
supplied with a copy of the recording and the transcript to be used. The witness
in a telephonic or non- stenographic deposition may be sworn by any notary.
The transcript of such deposition shall be submitted to the witness for signature
in accordance with Tex. Gov't Code Ann. §2001.099.
(d)
Not withstanding any other provisions of these sections,
the executive director may issue a commission to take a deposition prior to
the filing of charges under §213.15 of this title (Commencement of Disciplinary
Proceedings), if, in the opinion of the executive director, such a commission
is necessary for either party to preserve evidence and testimony or to investigate
any potential violation or lack of compliance with the Act, the rules and
regulations, or orders of the Board. The commission may be to compel the attendance
of any person to appear for the purposes of giving sworn testimony and to
compel the production of books, records, papers or other objects.
(e)
A deposition in a contested case shall be taken in the
county where the witness:
(1)
resides;
(2)
is employed; or
(3)
regularly transacts business in person.
§213.19.Subpoenas.
(a)
Upon the written request of any party, the executive director
may issue a subpoena to require the attendance of witnesses or the production
of books, records, papers, or other objects as may be necessary and proper
for the purposes of the proceedings.
(b)
If the subpoena is for the attendance of a witness, the
written request shall contain the name, address, and title, if any, of the
witness and the date upon which and the location at which the attendance of
the witness is sought. If the subpoena is for the production of books, records,
writings, or other tangible items, the written request shall contain a description
of the item sought; the name, address, and title, if any, of the person or
entity who has custody or control over the items and the date on which and
the location at which the items are sought to be produced. Each request, whether
for a witness or for production of items, shall contain a statement of the
reasons why the subpoena should be issued.
(c)
Upon a finding that a party has shown good cause for the
issuance of the subpoena, the executive director shall issue the subpoena
in the form described in Texas Government Code §2001.089.
(d)
Notwithstanding any other provisions of these sections,
the executive director may issue a subpoena prior to the filing of formal
charges under §213.15 of this title (Commencement of Disciplinary Proceedings),
if, in the opinion of the executive director, such a subpoena is necessary
to preserve evidence and testimony to investigate any potential violation
or lack of compliance with the NPA, the rules and regulations, or orders of
the Board. The subpoena may be to compel the attendance of any person to appear
for the purposes of giving sworn testimony and/or to compel the production
of books, records, papers, or other objects.
§213.20.Informal Proceedings.
(a)
Any matter within the Board's jurisdiction may be resolved
informally by stipulation, agreed settlement, agreed order, dismissal or default.
(b)
In disciplinary matters, the Board shall offer the complainant
and the licensee the opportunity to be heard. The offer may be made at any
time prior to disposition and may be included on the Board's complaint form,
on any notice required by statute or these rules, or otherwise.
(c)
Informal proceedings may be conducted in person, by attorney,
or by electronic, telephonic, or written communication.
(d)
Informal proceedings shall be conducted pursuant to the
following procedural standards:
(1)
Respondent shall have a right to be represented by an attorney
of record. At any time, should respondent choose to obtain representation
by an attorney and advises staff of such choice, the conference will be discontinued;
(2)
Respondent will be expected to answer questions concerning
the allegations contained in notice of complaint or formal charges, but may
decline to answer any questions posed during the conference;
(3)
Respondent and staff participation in the conference is
voluntary and may be terminated by either party without prejudicing the right
to proceed with a contested case. Respondent will be expected to cooperate
fully with the Enforcement Staff to ensure that it has all pertinent information
relating to the complaint or formal charges against respondent; and
(4)
Although, a verbatim transcript is not being kept of the
informal conference, party admissions and outline notes may be used at a formal
hearing if this matter is docketed as a formal complaint at the State Office
of Administrative Hearings.
(e)
Informal conferences may be conducted at any time by the
executive director or designee.
(f)
The Board's counsel or assistant attorney general shall
participate in informal proceedings.
(g)
Disposition of matters considered informally may be made
at any time in an agreed order containing such terms as the executive director
may deem reasonable and necessary. Except as to matters delegated to the executive
director for ratification, said agreed order shall not be final and effective
until the Board, or an eligibility and disciplinary committee, votes to accept
the proposed disposition.
(h)
Referral to peer assistance after report to the Board.
(1)
A nurse required to be reported under Tex. Occ. Code Ann. §§301.401
- .409, may obtain informal disposition through referral to a peer assistance
program as specified in Tex. Occ. Code Ann. §301.410, as amended, if
the nurse:
(A)
makes a written stipulation of the nurse's impairment by
dependency on chemicals or by mental illness;
(B)
makes a written waiver of the nurse's right to administrative
hearing and judicial review of:
(i)
all matters contained in the stipulation of impairment;
(ii)
any future modification or extension of the peer assistance
contract;
(iii)
the future imposition of sanctions under Tex. Occ. Code
Ann. §301.453 in the event the executive director should determine the
nurse has failed to comply with the requirements of the peer assistance program;
and
(C)
makes a written contract with the Board of Nurse Examiners
through its executive director promising to:
(i)
undergo and pay for such physical and mental evaluations
as the executive director or the peer assistance program determine to be reasonable
and necessary to evaluate the nurse's impairment; to plan, implement and monitor
the nurse's rehabilitation; and, to determine if, when and under what conditions
the nurse can safely return to practice;
(ii)
sign a participation agreement with the peer assistance
program;
(iii)
comply with each and every requirement of the peer assistance
program in full and timely fashion for the duration of the contract and any
extension(s) thereof; and
(iv)
waive confidentiality and privilege and authorize release
of information about the nurse's impairment and rehabilitation to the peer
assistance program and the executive director of the Board of Nurse Examiners.
(2)
Disposition of a complaint by referral to a peer assistance
program is not a finding which requires imposition of a sanction under Tex.
Occ. Code Ann. §301.453.
(3)
In the event the nurse fails to comply with the nurse's
contract with the Board of Nurse Examiners or the nurse's participation agreement
with the peer assistance program, such non-compliance will be considered by
the executive director at an informal proceeding after notice to the nurse
of the non-compliance and opportunity to respond. At the informal proceeding,
the executive director may consider facts relevant to the alleged non-compliance,
modify or extend the contract or participation agreement, declare the contract
satisfied or impose section 301.453 sanctions on the nurse which will result
in public discipline and reporting to the National Council of State Boards
of Nursing's Disciplinary Data Bank.
(i)
If eligibility matters are not resolved informally, the
petitioner may obtain a hearing before SOAH by submitting a written request
to the staff.
(j)
If disciplinary matters are not resolved informally, formal
charges may be filed in accordance with §213.15 of this title (Commencement
of Disciplinary Proceedings) and the case may be set for a hearing before
SOAH in accordance with §213.22 of this title (Formal Proceedings).
(k)
Pre-docketing conferences may be conducted by the executive
director prior to SOAH acquiring jurisdiction over the contested case. The
executive director, unilaterally or at the request of any party, may direct
the parties, their attorneys or representatives to appear before the executive
director at a specified time and place for a conference prior to the hearing
for the purpose of:
(1)
simplifying the issues;
(2)
considering the making of admissions or stipulations of
fact or law;
(3)
reviewing the procedure governing the hearing;
(4)
limiting the number of witnesses whose testimony will be
repetitious; and
(5)
doing any act that may simplify the proceedings, and disposing
of the matters in controversy, including settling all or part of the issues
as in dispute pursuant to sections 213.20 and 213.21 of this title (Informal
Proceedings and Agreed Disposition).
§213.21.Agreed Disposition.
Informal proceedings, complaints and formal charges may be resolved
by stipulation, agreed settlement, agreed order, or dismissal pursuant to
Tex. Occ. Code Ann. §301.463.
§213.22.Formal Proceedings.
(a)
Formal administrative hearings in contested cases shall
be conducted in accordance with the APA and SOAH rules. Jurisdiction over
the case is acquired by SOAH when the staff or respondent files a Request
to Docket Case Form accompanied by legible copies of all pertinent documents,
including but not limited to the complaint, petition, application, or other
document describing the agency action giving rise to a contested case.
(b)
When a case has been docketed before SOAH, Board staff
or respondent shall provide a notice of hearing to all parties in accordance
with §2001.052, Texas Government Code, and applicable SOAH rules.
(c)
In disciplinary cases, the respondent shall enter an appearance
by filing a written answer or other responsive pleading with SOAH, with a
copy to staff, within 20 days of the date on which the notice of hearing is
served to the respondent.
(d)
For purposes of this section, an entry of an appearance
shall mean the filing of a written answer or other responsive pleading.
(e)
The failure of the respondent to timely enter an appearance
as provided in this section shall entitle the staff to a continuance at the
time of the hearing in the contested case for such reasonable period of time
as determined by the judge.
(f)
The notice of hearing provided to a respondent for a contested
case shall include the following language in capital letters in 12-point bold
face type: FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER
RESPONSIVE PLEADING TO THE FORMAL CHARGES WITHIN 20 DAYS OF THE DATE THIS
NOTICE WAS MAILED, SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF
THE HEARING.
(g)
If a respondent fails to appear in person or by attorney
on the day and at the time set for hearing in a contested case, regardless
of whether an appearance has been entered, the judge, pursuant to SOAH's rules,
shall, upon adequate proof that proper notice under the APA and SOAH rules
was served upon the defaulting party, enter a default judgment in the matter
adverse to the respondent. Such notice shall have included in 12-point, bold
faced type, the fact that upon failure of the party to appear at the hearing,
the factual allegations in the notice will be deemed admitted as true and
the relief sought in the proposed recommendation by the staff shall be granted
by default.
(h)
Any default judgment granted under this section will be
entered on the basis of the factual allegations in the formal charges contained
in the notice of hearing, and upon proof of proper notice to the respondent.
For purposes of this section, proper notice means notice sufficient to meet
the provisions of the Texas Government Code §§2001.051, 2001.052,
and 2001.054, as well as §213.10 of this title (Notice and Service).
Such notice of hearing also shall include the following language in capital
letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING IN PERSON
OR BY LEGAL REPRESENTATIVE, REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED,
WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED
AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
(i)
A motion to vacate a default judgment rendered by the judge
must be filed within 10 days of service of notice of the default judgment.
(1)
The motion to vacate the default judgment shall be granted
if movant proves by the preponderance of the evidence that the failure to
attend the hearing was not intentional or the result of conscious indifference,
but due to accident or mistake, provided that respondent has a meritorious
defense to the factual allegations contained in the formal charges and the
granting thereof will occasion no delay or otherwise work an injury to the
Board.
(2)
If the motion to vacate the default judgment is granted,
it shall be the responsibility of the parties to either settle the matter
informally or to request a rehearing on the merits. Whenever possible, the
rehearing of the case shall occur with the judge that heard the default matter.
(j)
Because of the often voluminous nature of the records properly
received into evidence by the judge, the party introducing such documentary
evidence may paginate each such exhibit or flag pertinent pages in each such
exhibit in order to expedite the hearing and the decision-making process.
(k)
The schedule of sanctions set out in the NPA is adopted
by the Board, and the judge shall use such sanctions as well as any sanctions
adopted by the Board by rule.
(l)
Within a reasonable time after the conclusion of the hearing,
the judge shall prepare and serve on the parties a proposal for decision that
includes the judge's findings of fact and conclusions of law and a proposed
order recommending a sanction to be imposed, if any.
(m)
Each hearing may be recorded by a court reporter in accordance
with the APA and SOAH rules. The cost of the transcription of the statement
of facts shall be borne by the party requesting the transcript and said request
shall be sent directly to the court reporter and the requesting party shall
notify the other party in writing of the request.
(n)
A party who appeals a final decision of the Board shall
pay all of the costs of preparation of the original and any certified copy
of the record of the proceeding that is required to be transmitted to the
reviewing court.
(1)
The record in a contested case shall consist of the following:
(A)
all pleadings, motions, intermediate rulings;
(B)
all evidence received or considered by the judge;
(C)
a statement of the matters officially noticed;
(D)
questions and offers of proof, objections, and rulings
thereon;
(E)
proposed findings and exceptions;
(F)
any decision, opinion, or report by the judge presiding
at the hearing;
(G)
all staff correspondence submitted to the judge in connection
with his or her consideration of the case; and
(H)
the transcribed statement of facts (Q & A testimony)
from the hearing unless the parties have stipulated to all or part of the
statement of facts.
(2)
Calculation of costs for preparation of the record shall
be governed by the same procedure utilized by the Board in preparing documents
responsive to open records requests pursuant to the Public Information Act.
These costs shall include, but not be limited to, the cost of research, document
retrieval, copying, and labor.
§213.23.Decision of the Board.
(a)
Except as to those matters expressly delegated to the executive
director for ratification, either the Board or the Eligibility and Disciplinary
Committee, may make final decisions in all matters relating to the granting
or denial of a license or permit, discipline, temporary suspension, or administrative
and civil penalties.
(b)
Any party of record who is adversely affected by the proposal
for decision of the judge shall have the opportunity to file exceptions and
a brief to the proposal for decision within 15 days after the date of service
of the proposal for decision. A reply to the exceptions may be filed by the
other party within 15 days of the filing of the exceptions. Exceptions and
replies shall be filed with the judge with copies served on the opposing party.
The proposal for decision may be amended by the judge pursuant to the exceptions,
replies, or briefs submitted by the parties without again being served on
the parties.
(c)
The proposal for decision may be acted on by the Board,
or the Eligibility and Disciplinary Committee, after the expiration of 10
days after the filing of replies to exceptions to the proposal for decision
or upon the day following the day exceptions or replies to exceptions are
due if no such exceptions or replies are filed.
(d)
It is the policy of the Board to change a finding of fact
or conclusion of law in a proposal for decision or to vacate or modify the
proposed order of a judge when, the Board determines:
(1)
that the judge did not properly apply or interpret applicable
law, agency rules, written policies provided by staff or prior administrative
decisions;
(2)
that a prior administrative decision on which the judge
relied is incorrect or should be changed; or
(3)
that a technical error in a finding of fact should be changed.
(e)
If the Board modifies, amends, or changes the recommended
order of the judge, an order shall be prepared reflecting the Board's changes
as stated in the record of the meeting and stating the specific reason and
legal basis for the changes made according to subsection (d) of this section.
(f)
An order of the Board shall be in writing and may be signed
by the executive director on behalf of the Board.
(g)
A copy of the order shall be mailed to all parties and
to the party's last known employer as a professional nurse.
(h)
The decision of the Board is immediate, final and appealable
upon the signing of the written order by the executive director on behalf
of the Board where:
(1)
the Board finds and states in the order that an imminent
peril to the public health, safety, and welfare requires immediate effect
of the order; and
(2)
the order states it is final and effective on the date
rendered.
(i)
A motion for rehearing shall not be a prerequisite for
appeal of the decision where the order of the Board contains the finding set
forth in subsection (h) of this section.
(j)
Motions for rehearing are controlled by Texas Government
Code §2001.145.
§213.24.Rescission of Probation.
(a)
At least 20 days prior to a hearing to rescind probation,
the probationer shall be served with written notice of the allegations supporting
rescission of the probation.
(b)
The hearing shall be conducted in accordance with §213.22
of this title (Formal Proceedings), and the decisions of the Board shall be
rendered in accordance with §213.23 of this title (Decision of the Board).
(c)
After giving the probationer notice and an opportunity
to be heard, the Board may set aside the stay order and impose the stayed
discipline (revocation/suspension) of the probationer's license.
(d)
If during the period of probation, an additional allegation,
accusation, or petition is reported or filed against the probationer's license,
the probationary period shall not expire and shall automatically be extended
until the allegation, accusation, or petition has been acted upon by the Board.
(e)
The Board may determine as part of probation that the public
may be better protected if probationer is suspended from the practice of nursing
for a specific time period in order to correct deficiencies in skills, education
or personal rehabilitation and to assure documented proof of rehabilitation.
Prior to the lifting of the actual suspension of license, the probationer
will provide documentation of completion of educational courses or treatment
rehabilitation.
§213.25.Monitoring.
(a)
The Board shall identify and monitor licensees who present
a risk to the public and who are subject to Board orders. The monitoring system
shall track at least the name, license number, address, employer, and any
other information necessary to demonstrate compliance or non-compliance with
an order of the Board.
(b)
Monitored licensees will pay a monthly fee as stated in
the Board order. Said fee shall be paid on or before the 5th of each month.
§213.26.Reissuance of a License.
(a)
A person whose license to practice professional nursing
in this state has been revoked, suspended, or surrendered, may apply for reinstatement
of the license. In the case of revocation, petition shall not be made prior
to one year after the effective date of the revocation. The Board may approve
or deny a petition. In the case of denial, the Board may set a reasonable
time that must elapse before another petition may be filed. The Board may
impose reasonable conditions that a petitioner must satisfy before reinstatement
of an unencumbered license.
(b)
A petition for reinstatement shall be in writing and in
the form prescribed by the Board.
(c)
Petitioner's appearance at any hearing concerning reinstatement
of a license shall be in person unless otherwise approved by the executive
director.
(d)
The burden of proof is on the petitioner to prove present
fitness to practice as well as compliance with all terms and conditions imposed
as a part of any revocation, surrender or suspension. A license may be reissued
with a limited practice designation or with stipulations. If petition for
reinstatement is denied, Petitioner may request a hearing before SOAH.
(e)
In considering reinstatement of a surrendered, suspended,
or revoked license, the Board will evaluate:
(1)
the conduct which resulted in voluntary surrender, suspension,
or revocation of the license;
(2)
the conduct of the petitioner subsequent to the suspension,
revocation, or acceptance of surrender of license;
(3)
the lapse of time since suspension, revocation, or acceptance
of surrender;
(4)
compliance with all conditions imposed by the Board as
a prerequisite for issuance of the license; and
(5)
the petitioner's present qualification to practice professional
nursing based on his or her history of nursing related employment or education.
§213.30.Declaratory Order of Eligibility for Licensure.
(a)
A person enrolled or planning to enroll in an educational
nursing program that prepares a person for an initial license as a registered
nurse or an applicant who seeks licensure by endorsement pursuant §217.5
who has reason to believe that he or she may be ineligible for licensure,
may petition the Board for a declaratory order or apply for a license by endorsement
as to his or her eligibility.
(b)
The person must submit a petition or application on forms
provided by the Board which includes:
(1)
a statement by the petitioner or applicant indicating the
reason(s) and basis of potential ineligibility;
(2)
if the potential ineligibility is due to criminal conduct
and/or conviction, any court documents including, but not limited to, indictments,
orders of deferred adjudication, judgments, probation records and evidence
of completion of probation, if applicable;
(3)
if the potential ineligibility is due to mental illness,
evidence of evaluation, including a prognosis, by a psychologist or psychiatrist,
evidence of treatment, including any medication;
(4)
if the potential ineligibility is due to chemical dependency
including alcohol, evidence of evaluation and treatment, after care and support
group attendance; and
(5)
the required fee which is not refundable.
(c)
An investigation of the petition/application and the petitioner's/applicant's
eligibility shall be conducted.
(d)
The petitioner/applicant or the Board may amend the petition/application
to include additional grounds for potential ineligibility at any time before
a final determination is made.
(e)
If an applicant under §217.5 (Temporary License and
Endorsement) has been licensed to practice professional nursing in any jurisdiction
and has been disciplined, or allowed to surrender in lieu of discipline, in
that jurisdiction, the following provisions shall govern the eligibility of
the applicant under §213.27 (Good Professional Character).
(1)
A certified copy of the order or judgment of discipline
from the jurisdiction is prima facie evidence of the matters contained in
such order or judgment, and a final adjudication in the other jurisdiction
that the applicant has committed professional misconduct is conclusive of
the professional misconduct alleged in such order or judgment.
(2)
An applicant disciplined for professional misconduct in
the course of nursing in any jurisdiction or an applicant who resigned in
lieu of disciplinary action is deemed to not have present good professional
character under §213.27 and is therefore ineligible to file an application
under §217.5 during the period of such discipline imposed by such jurisdiction,
and in the case of revocation or surrender in lieu of disciplinary action,
until the applicant has filed an application for reinstatement in the disciplining
jurisdiction and obtained a final determination on that application.
(f)
If a petitioner's/applicant's potential ineligibility is
due to criminal conduct and/or conviction, the following provisions shall
govern the eligibility of the applicant under §213.28 (Licensure of Persons
with Criminal Convictions):
(1)
The record of conviction or order of deferred adjudication
is conclusive evidence of guilt.
(2)
An individual guilty of a felony under this rule is conclusively
deemed not to have present good moral character and fitness and shall not
be permitted to petition the Board for a Declaratory Order of Eligibility
for Licensure for a period of three years after the completion of the sentence
and/or period of probation.
(3)
Upon proof that a felony conviction or felony order of
probation with or without adjudication of guilt has been set aside or reversed,
the petitioner or applicant shall be entitled to a new hearing before the
Board for the purpose of determining whether, absent the record of conclusive
evidence of guilt, the petitioner or applicant possesses present good moral
character and fitness.
(g)
If the executive director proposes to find the petitioner
or applicant ineligible for licensure, the petitioner or applicant may obtain
a hearing before the State Office of Administrative Hearings. The Executive
Director shall have discretion to set a hearing and give notice of the hearing
to the petitioner or applicant. The hearing shall be conducted in accordance
with §213.22 of this title (Formal Proceedings) and the rules of SOAH.
When in conflict, SOAH's rules of procedure will prevail. The decision of
the Board shall be rendered in accordance with §213.23 of this title
(Decision of the Board).
§213.31.Cross-reference of Rights and Options Available to Licensees and Petitioners.
Licensees subject to disciplinary action and petitioners seeking a
determination of licensure eligibility have certain rights and options available
to them in connection with these mechanisms. For example, licensees or petitioners
have the right to request information in the Board's possession, including
information favorable to licensee or petitioner, and the option to be represented
by an attorney at their own expense. The following is a list of references
to provisions of the Nursing Practice Act (Tex. Occ. Code Ann. ch. 301) and
the Board's rules addressing these rights and options and related matters.
Persons with matters before the Board should familiarize themselves with these
provisions:
(1)
Section 301.257 - Declaratory Order of License Eligibility;
(2)
Section 301.203 - Records of Complaints;
(3)
Section 301. 204 - General Rules Regarding Complaint Investigation
and Disposition;
(4)
Section 301.464 - Informal Proceedings;
(5)
Section 301.552 - Monitoring of License Holder;
(6)
Section 301.452 - Grounds for Disciplinary Action;
(7)
Section 301.453 - Disciplinary Authority of Board; Methods
of Discipline;
(8)
Section 301.457 - Complaint and Investigation;
(9)
Section 301.159 - Board Duties Regarding Complaints;
(10)
Section 301.463 - Agreed Disposition;
(11)
Section 301.462 - Voluntary Surrender of License;
(12)
Section 301.454 - Notice and Hearing;
(13)
Section 301.458 - Initiation of Formal Charges; Discovery;
(14)
Section 301.459 - Formal Hearing;
(15)
Section 301.460 - Access to Information;
(16)
Section 301.352 - Protection for Refusal to Engage in
Certain Conduct;
(17)
Section 301.455 - Temporary License Suspension;
(18)
Rule 217.11 - Standards of Professional Nursing Practice;
(19)
Rule 217.12 - Unprofessional Conduct; and
(20)
Rules 213.1 - 213.33 - Practice and Procedure.
§213.32.Schedule of Administrative fine(s).
In disciplinary matters, the Board may assess a monetary penalty or
fine in the circumstances and amounts as described.
(1)
The following violations may be appropriate for disposition
by fine with or without educational stipulations:
(A)
practice on a delinquent license for more than six months
but less than two years:
(i)
first occurrence: $250;
(ii)
subsequent occurrence: $500;
(B)
practice on a delinquent license for two to four years:
(i)
first occurrence: $500;
(ii)
subsequent occurrence: $1,000;
(C)
practice on a delinquent license more than four years:
$1,000 plus $250 for each year over four years;
(D)
aiding, abetting or permitting a registered nurse to practice
on a delinquent license:
(i)
first occurrence: $100 - $500;
(ii)
subsequent occurrence: $200 - $1,000;
(E)
failure to comply with CE requirements:
(i)
first occurrence: $100;
(ii)
subsequent occurrence: $250;
(F)
failure to comply with mandatory reporting requirements:
(i)
first occurrence: $100 - $500;
(ii)
subsequent occurrence: $200 - $1,000;
(G)
failure to assure licensure/credentials of personnel for
whom the nurse is administratively responsible:
(i)
first occurrence: $100 - $500;
(ii)
subsequent occurrence: $200 - $1,000;
(H)
failure to provide employers, potential employers, or the
Board with complete and accurate answers to either oral or written questions
on subject matters including but not limited to: employment history, licensure
history, criminal history:
(i)
first occurrence: $200 - $800;
(ii)
second occurrence: $500 - $1000;
(I)
failure to report unauthorized practice:
(i)
first occurrence: $100 - $500;
(ii)
subsequent occurrence: $200 - $1,000;
(J)
failure to comply with Board requirements for change of
name/address:
(i)
first occurrence: $100;
(ii)
subsequent occurrence: $150;
(K)
failure to develop, maintain and implement a peer review
plan according to statutory peer review requirements:
(i)
first occurrence: $100 - $1,000;
(ii)
subsequent occurrence: $500 - $1,000;
(L)
failure to file, or cause to be filed, complete, accurate
and timely reports required by Board order:
(i)
first occurrence: $100;
(ii)
subsequent occurrence: $250;
(M)
failure to make complete and timely compliance with the
terms of any stipulation contained in a Board order:
(i)
first occurrence: $100;
(ii)
subsequent occurrence: $250;
(N)
failure to report patient abuse to the appropriate authority
of the State of Texas, including but not limited to, providing inaccurate
or incomplete information when requested from said authorities:
(i)
first occurrence: $500;
(ii)
second occurrence: $1000 - $5000; and
(O)
other non-compliance with the NPA, Board rules or orders
which does not involve fraud, deceit, dishonesty, intentional disregard of
the NPA, Board rules, Board orders, harm or substantial risk of harm to patients,
clients or the public:
(i)
first occurrence: $100 - $500;
(ii)
subsequent occurrence: $200 - $1,000.
(2)
The following violations may be appropriate for disposition
by fine in conjunction with one or more of the penalties/sanctions listed
in these rules:
(A)
violations other than those listed in paragraph (1)(A)-(N)
of this section:
(i)
first occurrence: $100 - $1,000;
(ii)
subsequent occurrence: $200 - $1,000; and
(B)
a cluster of violations listed in paragraph (1)(A)-(O)
of this section: $100 - $5,000.
(3)
Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty or fine.
(4)
The executive director is authorized to dispose of violations
listed in paragraph (1) (A)-(O) of this section, by fine, or by a combination
of fine and stipulations for education, which shall be effective without ratification
by the Board. The executive director shall report such cases to the Board
at its regular meetings.
§213.33.Factors Considered for Imposition of Penalties/Sanctions and/or Fines.
(a)
The following factors shall be considered by the executive
director when determining whether to dispose of a disciplinary case by fine
or by fine and stipulation and the amount of such fine. These factors shall
be used by SOAH and the Board in determining the appropriate penalty/sanction
in disciplinary cases:
(1)
evidence of actual or potential harm to patients, clients
or the public;
(2)
evidence of a lack of truthfulness or trustworthiness;
(3)
evidence of misrepresentation(s) of knowledge, education,
experience, credentials or skills which would lead a member of the public,
an employer, a member of the health-care team, or a patient to rely on the
fact(s) misrepresented where such reliance could be unsafe;
(4)
evidence of practice history;
(5)
evidence of present fitness to practice;
(6)
evidence of previous violations or prior disciplinary history
by the Board or any other health care licensing agency in Texas or another
jurisdiction;
(7)
the length of time the licensee has practiced;
(8)
the actual damages, physical, economic, or otherwise, resulting
from the violation;
(9)
the deterrent effect of the penalty imposed;
(10)
attempts by the licensee to correct or stop the violation;
(11)
any mitigating or aggravating circumstances;
(12)
the extent to which system dynamics in the practice setting
contributed to the problem; and
(13)
any other matter that justice may require.
(b)
Each specific act or instance of conduct may be treated
as a separate violation.
(c)
Unless otherwise specified, fines shall be payable in full
by cashier's check or money order not later than the 45th day following the
entry of an Order.
(d)
The payment of a fine shall be in addition to the full
payment of all applicable fees and satisfaction of all other applicable requirements
of the NPA and the Board's rules.
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 April 22, 2002.
TRD-200202455
Katherine Thomas
Executive Director
Board of Nurse Examiners
Earliest possible date of adoption: June 2, 2002
For further information, please call: (512) 305-6823