TITLE 22.EXAMINING BOARDS

Part 11. BOARD OF NURSE EXAMINERS

Chapter 213. PRACTICE AND PROCEDURE

22 TAC §§213.27 - 213.29

The Board of Nurse Examiners for the State of Texas adopts amendments to 22 TAC §§213.27 - 213.29. These rules concern the Practice and Procedure of the Board of Nurse Examiners. These amendments are adopted with changes to the proposed text published in the Texas Register at 27 Tex Reg 6937 on August 9, 2002, and pursuant to the Board's rule review published in the Texas Register (27 TexReg 2845) on April 5, 2002.

The Board of Nurse Examiners reviewed the rules governing practice and procedure of Registered Nurses (RNs) 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 current statutory provisions and Board policies. The Board updated and amended the sections to mirror or incorporate Texas Occupations Code chapter 53, Consequences of Criminal Convictions, and the Board's enabling statutes. As a result, the Board of Nurse Examiners has determined that the adopted amendments of the current sections are warranted.

The adopted amendments to §§213.27 - 213.29 are made subject to §2001.039 of the Texas Government Code requiring rule review within four (4) years of the date of a rule's last review or adoption. These adopted amendments complete the requisite review of Rule 213. The Board adopts these amendments with some changes. The General Counsel for the Board advises that the changes in the amended rules affect no new persons, entities, or subjects. Accordingly, republication of the amended sections as proposed amendments is not required.

One letter with several comments was received from James H. Willmann, J.D., General Counsel/Director Governmental for Texas Nurses Association (TNA).

TNA first makes an observation that the "proposed rules appear to impose more stringent or at least categorical sanctions for RNs convicted of or receiving probation or deferred adjudication for a felony." It further states that RNs with chemical abuse or fitness issues may have convictions or deferred orders and should be allowed to continue practicing if they participate in a board-approved peer assistance program or are successfully addressing their chemical dependency or mental illness. The Board's policies have not changed with the adoption of these rules and the Board continues to support any effort made by a nurse to successfully address his/her mental or chemical dependency issues and encourages voluntary participation in the Texas Peer Assistance Program for Nurses (TPAPN). Many nurses with diagnoses of some form of mental illness are successful practitioners due to TPAPN participation and/or a successful medication regimen and/or therapy; however, a nurse who has been convicted of a felony, placed on probation or received deferred adjudication relating to a felony or have pending felony charges or a current felony investigation may not be eligible to participate in TPAPN. Chapter 53 of the Occupations Code also mandates that the Board revoke the license of any licensee who has been imprisoned following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision regardless of any coinciding chemical dependency or mental illness. In addition, the Board requires at least one year of sobriety for a registered nurse to be able to maintain her/his license, and at least five years of sobriety to have an unencumbered license. These policies continue to be effective and support the amendments to rules 213.27 - 213.29.

TNA continues by expressing concern specifically with the Board's definition of the term "conviction" and a perceived ambiguity between the proposed amendments and new rule 213.1(12)'s definition and requests that the Board explicitly state whether or not rule 213.28 (Criminal Convictions) applies to probation and deferred adjudication. The Board has intentionally determined to include probated sentences and deferred orders within its definition of what constitutes a conviction and unacceptable behavior. Generally, a conviction for a felony or a misdemeanor involving moral turpitude is prima facie evidence of guilt of the underlying conduct and the conviction, but the conduct alleged in a deferred order that is a felony or a misdemeanor of moral turpitude or an action that would be detrimental to the practice of professional nursing is deemed to constitute unprofessional conduct and a violation of existing state and/or federal laws. Rule 213.28 was amended to be consistent with the language of chapter 53 of the Occupations Code. To clarify the Board's position in this matter, criminal behavior falls within rule 213.28 (Criminal Convictions) and rule 213.27 (Good Professional Character). The delineated factors stated in both of these rules apply to both the criminal behavior and any order imposed by a court of law. If a nurse has been convicted or received a deferred or probated order, upon seeking to retain or obtain a license, a nurse would need to show that he/she possesses good professional character as outlined in rule 213.27 and that any criminal behavior can be mitigated by the circumstances outlined in rule 213.28.

TNA then specifically addresses the individual rules beginning with rule 213.27 relating to Good Professional Character. It recommends that the Board clarify the rule to explicitly state what is being conclusively established by the record of conviction or deferred adjudication in 213.27(c)(1) which states that the record of conviction or order of deferred adjudication is conclusive evidence of guilt. It goes on to recommend that the record not be conclusive evidence of the underlying facts. In response, the Board does not desire to take on the responsibility of retrying a criminal case or the underlying conduct that led to a court order. The Board contends that the underlying criminal conduct can constitute as a failure to conform to federal, state, and local laws that affect an RN's professional practice as stated in rule 217.12(1) (Unprofessional Conduct). As stated above, a conviction is prima facie evidence of guilt and the underlying conduct of a court order for criminal conduct that rises to the level of a felony or a misdemeanor of moral turpitude or relates to the practice of nursing are considered to be subject to rules 213.28 and 213.27. The Board in carrying out its duty to the public at large has a duty to monitor any nurse who has a license and who is being monitored by a court and under probationary requisites that would affect, limit, or prohibit a nurse's ability to practice. TNA then recommends that the three (3) year period in subsections (c)(2) and (f) not apply to RNs who are in good standing in TPAPN or have otherwise addressed their chemical dependency or mental illness. As stated above, TPAPN restricts the participation of an RN who has received a judicial order for their criminal conduct. As to RNs who have addressed their chemical dependency or mental illness, it has been the Board's experience that chemical dependency is what has generally led to legal action and not a nurse's mental illness. Regarding the issue of chemical dependency that has led to a criminal investigation and subsequent judicial action, the Board's experience is that while a nurse has been in jail or under intense court supervision, the recovery has been imposed. The Board would recommend that a nurse continue to manage his/her chemical addiction on a voluntary basis to continue that recovery and then seek to return to the practice of professional nursing. The Board acknowledges that not all circumstances are the same and, therefore, the three-year time period is not a mandate but merely a recommendation.

In its final recommendation under rule 213.27, TNA requests that a nurse's participation in an approved peer assistance program be listed as a defense available in subsection (d) to a nurse who is disciplined in another jurisdiction. Subsection (d) is merely for the purpose to lay down guidelines for a nurse who has been sanctioned in another jurisdiction and, therefore, subject to discipline under Tex. Occ. Code §301.452(b)(8). The Board does not seek to go behind an existing order of another jurisdiction. If a nurse is involved in a peer assistance program of another state either under an order or on a voluntary basis, the Board will then seek to match any discipline imposed by another jurisdiction that it determines is reasonable and yet protects the public. The Board is supportive of any nurse who seeks to address his/her chemical dependency or mental illness issue(s).

In rule 213.28 pertaining to Licensure of Persons with Criminal Convictions, TNA expresses concern that the Board is granting itself discretion when a nurse has been imprisoned for a felony which would then be contrary to section 53.021(b) of the Texas Occupations Code. Subsection (7) which addresses imprisonment for a felony is one of many factors the Board will consider in eligibility and disciplinary matters, and when this factor is relevant then chapter 53 will be the applicable guideline for the Board to follow.

Rule 213.29 addresses intemperate use and lack of fitness. TNA addresses several concerns with changes to this rule and the first is the Board's use of "licensed chemical dependency evaluator" in subsection (c)(1), and requests clarification as to the terminology. The Board uses this term to refer to an individual who possesses Board approved credentials and is certified to diagnose and evaluate chemical dependency. TNA recommends that subsection (c)(2) require actual participation in good standing be required to retain a license. The Board agrees with TNA's objective and hopes to achieve active participation by any nurse in TPAPN, but the purpose of this rule is to lay out the Board's policy and practice that if a nurse wants to retain a license and does not meet the one-year sobriety requirement, the only option available to retain a license is eligibility to participate in a Board-approved peer assistance program. If a person chooses to participate in a peer assistance program and does not maintain good standing, then that nurse cannot retain his/her license. TNA additionally requests that in subsection (c)(3) current participants in TPAPN be eligible for an unencumbered license. Nurses who voluntarily report to TPAPN have unencumbered licenses and nurses who participate in TPAPN under Board order are required to comply with the TPAPN contract, so the only encumbrance on their license is the TPAPN contract requirements. The Board imposes no additional requirements. Finally, TNA requests that the subsection (c)(3) phrase "peer assistance program created pursuant to Chapter 467" be changed to a "board approved" peer assistance program" rather than "a peer assistance program created." The Board agrees and will change the language to a "board-approved peer assistance program created pursuant to Chapter 467."

The adopted amendments of these sections are done pursuant to Texas Occupations Code §301.151 which authorizes the Board to amend rules necessary for the performance of its duties.

§ 213.27.Good Professional Character.

(a) Good professional character is the integrated pattern of personal, academic and occupational behaviors which, in the judgment of the Board, indicates that an individual is able to consistently conform his or her conduct to the requirements of the Nursing Practice Act, the Board's rules and regulations, and generally accepted standards of nursing practice including, but not limited to, behaviors indicating honesty, accountability, trustworthiness, reliability, and integrity.

(b) Factors to be used in evaluating good professional character in eligibility and disciplinary matters are:

(1) Good professional character is determined through the evaluation of behaviors demonstrated by an individual in his or her personal, academic and occupational history. An individual's age, education, and experience necessarily affect the nature and extent of behavioral history and, therefore, shall be considered in each evaluation.

(2) A person who seeks to obtain or retain a license to practice professional nursing shall provide evidence of good professional character which, in the judgment of the Board, is sufficient to insure that the individual can consistently act in the best interest of patients/clients and the public in any practice setting. Such evidence shall establish that the person:

(A) is able to distinguish right from wrong;

(B) is able to think and act rationally;

(C) is able to keep promises and honor obligations;

(D) is accountable for his or her own behavior;

(E) is able to practice nursing in an autonomous role with patients/clients, their families, significant others, and members of the public who are or who may become physically, emotionally, or financially vulnerable;

(F) is able to recognize and honor the interpersonal boundaries appropriate to any therapeutic relationship or health care setting; and

(G) is able to promptly and fully self-disclose facts, circumstances, events, errors, and omissions when such disclosure could enhance the health status of patients/clients or the public or could protect patients/clients or the public from unnecessary risk of harm.

(3) Any conviction for a felony or for a misdemeanor involving moral turpitude or order of probation with or without an adjudication of guilt for an offense that would be a felony or misdemeanor involving moral turpitude if guilt were adjudicated.

(4) Any revocation, suspension, or denial of, or any other adverse action relating to, the person's license or privilege to practice nursing in another jurisdiction.

(c) The following provisions shall govern the determination of present good professional character and fitness of a Petitioner, Applicant, or Licensee who has been convicted of a felony in Texas or placed on probation for a felony with or without an adjudication of guilt in Texas, or who has been convicted or placed on probation with or without an adjudication of guilt in another jurisdiction for a crime which would be a felony in Texas. A Petitioner, Applicant, or Licensee may be found lacking in present good professional character and fitness under this rule based on the underlying facts of a felony conviction or deferred adjudication, as well as based on the conviction or probation through deferred adjudication itself.

(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 professional character and fitness and should not file a Petition for Declaratory Order or Application for Endorsement for a period of three years after the completion of the sentence and/or period of probation.

(3) In addition to the disciplinary remedies available to the Board pursuant to Tex. Occ. Code Ann. §301.452(b)(3) and (4), Texas Occupations Code chapter 53, and rule 213.28, a licensee guilty of a felony under this rule is conclusively deemed to have violated Tex. Occ. Code Ann. §301.452(b)(10) and is subject to appropriate discipline, up to and including revocation.

(d) The following provisions shall govern the determination of present good professional character and fitness of a Petitioner, Applicant, or Licensee who has been licensed to practice professional nursing in any jurisdiction and has been disciplined, or allowed to voluntarily surrender in lieu of discipline, in that jurisdiction.

(1) A certified copy of the order, judgment of discipline, or order of adverse licensure action from the jurisdiction is prima facie evidence of the matters contained in such order, judgment, or adverse action and is conclusive evidence that the individual in question has committed professional misconduct as alleged in such order of judgment.

(2) An individual disciplined for professional misconduct in the course of practicing professional nursing in any jurisdiction or an or an individual who resigned in lieu of disciplinary action (disciplined individual) is deemed not to have present good professional character and fitness and is, therefore, ineligible to file an Application for Endorsement to the Texas Board of Nursing 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 disciplined individual has filed an application for reinstatement in the disciplining jurisdiction and obtained a final determination on that application.

(3) The only defenses available to a Petitioner, Applicant, or Licensee under section (d) are outlined below and must be proved by clear and convincing evidence:

(A) The procedure followed in the disciplining jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process.

(B) There was such an infirmity of proof establishing the misconduct in the other jurisdiction as to give rise to the clear conviction that the Board, consistent with its duty, should not accept as final the conclusion on the evidence reached in the disciplining jurisdiction.

(C) The deeming of lack of present good professional character and fitness by the Board during the period required under the provisions of section (d) would result in grave injustice.

(D) The misconduct for which the individual was disciplined does not constitute professional misconduct in Texas.

(4) If the Board determines that one or more of the foregoing defenses has been established, it shall render such orders as it deems necessary and appropriate.

(e) An individual who applies for initial licensure, reinstatement, renewal, or endorsement to practice professional nursing in Texas after the expiration of the three-year period in (c)(2) above and subsection (f) of this rule, or after the completion of the disciplinary period assessed or ineligibility period imposed by any jurisdiction under subsection (d) above shall be required to prove, by a preponderance of the evidence:

(1) that the best interest of the public and the profession, as well as the ends of justice, would be served by his or her admission to practice professional nursing; and

(2) that (s)he is of present good professional character and fitness.

(f) An individual who applies for initial licensure, reinstatement, renewal, or endorsement to practice professional nursing in Texas after a negative determination based on a felony conviction, felony probation with or without an adjudication of guilt, or professional misconduct, or voluntary surrender in lieu of disciplinary action and whose application or petition is denied and not appealed is not eligible to file another petition or application for licensure until after the expiration of three years from the date of the Board's order denying the preceding petition for licensure.

§213.28.Licensure of Persons with Criminal Convictions.

(a) This section sets out the considerations and criteria on the eligibility of persons with criminal convictions to obtain a license as a registered nurse or those already licensed who renew their license. The Board may refuse to approve persons to take the licensure examination, may refuse to issue or renew a license or certificate of registration, or may refuse to issue a temporary permit to any individual that has been convicted of a felony, a misdemeanor involving moral turpitude, or engaged in conduct resulting in the revocation of probation imposed pursuant to such a conviction.

(b) The practice of nursing involves clients, their families, significant others and the public in diverse settings. The registered nurse practices in an autonomous role with individuals who are physically, emotionally and financially vulnerable. The nurse has access to personal information about all aspects of a person's life, resources and relationships. Therefore, criminal behavior whether violent or non-violent, directed against persons, property or public order and decency is considered by the Board as highly relevant to an individual's fitness to practice nursing.

(c) In considering whether a criminal conviction renders the individual ineligible for licensure or renewal of licensure as a registered nurse, the Board shall consider:

(1) the knowing or intentional practice of professional nursing without a license issued under the NPA;

(2) any felony or misdemeanor involving moral turpitude;

(3) the nature and seriousness of the crime;

(4) the relationship of the crime to the purposes for requiring a license to engage in professional nursing practice;

(5) 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

(6) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of professional nursing practice;

(7) whether imprisonment followed a felony conviction, felony community supervision revocation, revocation of parole or revocation of mandatory supervision; and

(8) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude.

(d) In addition to the factors that may be considered under subsection (c) of this section, the Board, in determining the present fitness of a person who has been convicted of a crime, shall consider:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and

(6) other evidence of the person's present fitness, including letters of recommendation from: prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff or chief of police in the community where the person resides; and any other persons in contact with the convicted person.

(e) It shall be the responsibility of the applicant, to the extent possible, to obtain and provide to the Board the recommendations of the prosecution, law enforcement, and correctional authorities as required under this Act. The applicant shall also furnish proof in such form as may be required by the Board that he or she has maintained a record of steady employment and has supported his or her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted.

(f) If requested by staff, it shall be the responsibility of the individual seeking licensure to ensure that staff is provided with legible, certified copies of all court and law enforcement documentation from all jurisdictions where the individual has resided or practiced as a licensed health care professional. Failure to provide complete, legible and accurate documentation will result in delays prior to licensure or renewal of licensure and possible grounds for ineligibility.

(g) Behavior that would otherwise bar or impede licensure may be deemed a "Youthful Indiscretion" as determined by an analysis of the behavior using the factors set out in §213.27 of this title (relating to Good Professional Character), subsections (a)-(e) of this section and at least the following criteria:

(1) age of 22 years or less at the time of the behavior;

(2) absence of criminal plan or premeditation;

(3) presence of peer pressure or other contributing influences;

(4) absence of adult supervision or guidance;

(5) evidence of immature thought process/judgment at the time of the activity;

(6) evidence of remorse;

(7) evidence of restitution to both victim and community;

(8) evidence of current maturity and personal accountability;

(9) absence of subsequent undesirable conduct;

(10) evidence of having learned from past mistakes;

(11) evidence of current support structures that will prevent future criminal activity; and

(12) evidence of current ability to practice professional nursing in accordance with the Nursing Practice Act, Board rules and generally accepted standards of professional nursing.

(h) With respect to a request to obtain a license from a person who has a criminal history, the executive director is authorized to close an eligibility file when the applicant has failed to respond to a request for information or to a proposal for denial of eligibility within 60 days thereof. (6/99)

§213.29.Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters.

(a) A person desiring to obtain or retain a license to practice professional nursing shall provide evidence of current sobriety and fitness consistent with this rule.

(b) Such person shall provide a sworn certificate to the Board stating that he/she has read and understands the requirements for licensure as a registered nurse and that he/she has not:

(1) within the past five years, become addicted to or treated for the use of alcohol or any other drug; or

(2) within the past five years, been diagnosed with, treated or hospitalized for schizophrenia and/or other psychotic disorders, bi-polar disorder, paranoid personality disorder, antisocial personality disorder or borderline personality disorder. (6/99)

(c) If a registered nurse is reported to the Board for intemperate use, abuse of drugs or alcohol, or diagnosis of or treatment for chemical dependency; or if a person is unable to sign the certification in subsection (b) of this section, the following restrictions and requirements apply:

(1) Any matter before the Board that involves an allegation of chemical dependency, or misuse or abuse of drugs or alcohol, will require at a minimum that such person obtain for Board review a chemical dependency evaluation performed by a licensed chemical dependency evaluator or other professional approved by the executive director;

(2) Those persons who have become addicted to or treated for alcohol or chemical dependency will not be eligible to obtain or retain a license to practice as a registered nurse unless such person can demonstrate sobriety and abstinence for the preceding twelve consecutive months through verifiable and reliable evidence, or can establish eligibility to participate in a peer assistance program created pursuant to Chapter 467 of the Health and Safety Code;

(3) Those persons who have become addicted to or treated for alcohol or chemical dependency will not be eligible to obtain or retain an unencumbered license to practice professional nursing until the individual has attained a five-year term of sobriety and abstinence or until such person has successfully completed participation in a board-approved peer assistance program created pursuant to Chapter 467 of the Health and Safety Code.

(4) Those persons who have been diagnosed with, treated, or hospitalized for the disorders mentioned in subsection (b) of this section shall execute an authorization for release of medical, psychiatric, and treatment records.

(d) It shall be the responsibility of those persons subject to this rule to submit to and pay for an evaluation by a professional approved by the executive director to determine current sobriety and fitness. The evaluation shall be limited to the conditions mentioned in subsection (b) of this section.

(e) Prior intemperate use or mental illness is relevant only so far as it may indicate current intemperate use or lack of fitness.

(f) With respect to chemical dependency in eligibility and disciplinary matters, the executive director is authorized to:

(1) review submissions from a movant, materials and information gathered or prepared by staff, and identify any deficiencies in file information necessary to determine the movant's request;

(2) close any eligibility file in which the movant has failed to respond to a request for information or to a proposal for denial of eligibility within 60 days thereof;

(3) approve eligibility, enter eligibility orders and approve renewals, without Board ratification, when the evidence is clearly insufficient to prove a ground for denial of licensure; and

(4) propose conditional orders in eligibility, disciplinary and renewal matters for individuals who have experienced chemical/alcohol dependency within the past five years provided:

(A) the individual presents reliable and verifiable evidence of having functioned in a sober/abstinent manner for the previous twelve consecutive months; and

(B) licensure limitations/stipulations and/or peer assistance program participation can be implemented which will ensure that patients and the public are protected until the individual has attained a five-year term of sobriety/abstinence.

(g) With respect to mental illness in eligibility, disciplinary, and renewal matters, the executive director is authorized to propose conditional orders for individuals who have experienced mental illness within the past five years provided:

(1) the individual presents reliable and verifiable evidence of having functioned in a manner consistent with the behaviors required of nurses under the Nursing Practice Act and Board rules for at least the previous twelve consecutive months; and

(2) licensure limitations/stipulations and/or peer assistance program participation can be implemented which will ensure that patients and the public are protected until the individual has attained a five-year term of controlled behavior and consistent compliance with the requirements of the Nursing Practice Act and Board rules.

(h) In renewal matters involving chemical dependency or mental illness, the executive director shall consider the following information from the preceding renewal period:

(1) evidence of the licensee's safe practice;

(2) compliance with the NPA and Board rules; and

(3) written verification of compliance with any treatment.

(i) Upon receipt of items (h)(1)-(3) of this section, the executive director may renew the license.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 25, 2002.

TRD-200207038

Katherine Thomas

Executive Director

Board of Nurse Examiners

Effective date: November 14, 2002

Proposal publication date: August 9, 2002

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