Proposed Rules Title 22

TITLE 22. EXAMINING BOARDS

Part 11. BOARD OF NURSE EXAMINERS

Chapter 213. PRACTICE AND PROCEDURE

22 TAC §§213.20, 213.27 - 213.30, 213.33

The Board of Nurse Examiners proposes amendments to 22 Texas Administrative Code §§213.20, 213.27, 213.28, 213.29, 213.30 and 213.33 pertaining to Practice and Procedure. Sections 213.20, 213.28, 213.29, and 213.33 are proposed for amendment pursuant to the changes to the Nursing Practice Act, Texas Occupations Code ch. 301, during the 80th Legislative Session the Board's Sunset Review. The proposed amendments to §213.27 and §213.30 are for the purpose of deleting obsolete portions of the rules. The proposed amendments to §§213.28, 213.29 and 213.33 were reviewed by the Board's Eligibility and Disciplinary Task Force during a July 13, 2007, meeting and the task force subsequently recommended their approval by the Board at its July 2007 board meeting. A rule review for Chapter 213 was published in the July 13, 2007, edition of the Texas Register.

The proposed amendment to §213.20 is pursuant to House Bill 2426 (Sunset Bill). This bill amended the Nursing Practice Act to include §301.167 related to Negotiated Rulemaking; Alternative Dispute Resolution . Section 301.167 requires the Board to "develop and implement a policy to encourage the use of...appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction." The statute continues as follows: "The board's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies." The amendment proposed in §213.20 implements this requirement.

The proposed amendments to §213.27 and §213.30 are for the sole purpose of deleting similar subsections of the rules that are not applied and, therefore, obsolete. Although the board views all felonious conduct seriously, mitigating factors may exist that justify some individuals being allowed to practice as a nurse. The criminal conduct must be deemed to affect the practice of nursing, and consideration must be given regarding: (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 fitness, including letters of recommendation...." Consideration of these factors make these subsections unnecessary.

House Bill 2426 (Sunset Bill) amended the Nursing Practice Act to include §301.1545 and §301.452(d) related to Criminal History Information in Licensing and Disciplinary Decision . Section 301.1545 requires the Board to "list the offenses for which a conviction would constitute grounds for the board to take action... or for which placement on deferred adjudication community supervision would constitute grounds for the board to take action under this chapter." Section 301.452(d) requires the board to "establish guidelines to ensure that any arrest information, in particular information on arrests in which criminal action was not proven or charges were not filed or adjudicated, that is received by the board under this section is used consistently, fairly, and only to the extent the underlying conduct relates to the practice of nursing." The amendments proposed in §213.28 implement these requirements.

The Board's Sunset Bill amended the Nursing Practice Act to include §301.410(b) related to Discipline of Impaired Nurses Who Commit Practice Violations . Section 301.410(b) creates the requirement that states, "A person who is required to report a nurse under this subchapter because the nurse is impaired or suspected of being impaired by chemical dependency or diminished mental capacity must report to the board if the person believes that an impaired nurse committed the practice violation." The amendments proposed in §213.29 implement these requirements.

Finally, House Bill 2426 amended the Nursing Practice Act to include §301.4531 related to Licensing and Regulatory Functions. Section 301.4531 requires the board to "adopt a schedule of the disciplinary sanctions that the board may impose under this chapter.... The board shall ensure that the severity of the sanction is appropriate to the type of violation or conduct that is the basis for disciplinary action." The statute continues as follows: "(b)...the board shall consider: (1) whether the person: (A) is being disciplined for multiple violations...(B) has previously been the subject of disciplinary action...; (2) the seriousness of the violation; (3) the threat to public safety; and (4) any mitigating factors." When persons are described by subsection (b)(1)(A) and (B) "the board shall consider taking a more severe disciplinary action...." The amendments proposed in §213.33 implement these requirements.

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

Ms. Thomas, has also determined that for each year of the first five year period the proposed amendments are in effect, the public benefit will be that the Board will more effectively fulfill its mission. There will not be any effect on small businesses or foreseeable anticipated costs to affected individuals as a result of the implementation of these amendments.

Written comments on the proposal may be submitted to Joy Sparks, Assistant General Counsel, Board of Nurse Examiners, 333 Guadalupe, Suite 3-460, Austin, Texas, 78701; by email to joy.sparks@bne.state.tx.us; or by facsimile to (512) 305-8101.

The proposed amendments are pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act. Texas Occupations Code §§301.410, 301.167, 301.1545, 301.452 and 301.4531 are affected and implemented by these proposed amendments.

§213.20.Informal Proceedings and Alternate Dispute Resolution (ADR) .

(a) The Board's policy is to encourage the resolution and early settlement of internal and external disputes, including contested cases, through voluntary settlement processes such as informal proceedings or alternative dispute resolution. Any matter within the Board's jurisdiction may be resolved informally by stipulation, agreed settlement, agreed order, dismissal, or default. These matters may also be resolved using any ADR procedure or combination of procedures described by Chapter 154, Civil Practice and Remedies Code.

(b) - (h) (No change.)

(i) ADR shall be conducted pursuant to the following procedural standards:

(1) Any ADR procedure used to resolve disputes before the Board shall comply with the requirements of the NPA, chapter 2009 of the Government Code, and any model guidelines for the use of ADR issued by the State Office of Administrative Hearings, which may be found at: http://www.soah.state.tx.us.

(2) The Board's general counsel or his designee shall be the Board's dispute resolution coordinator (DRC). The DRC shall perform the following functions, as required:

(A) coordinate the implementation of the Board's ADR policy;

(B) serve as a resource for any staff training or education needed to implement the ADR procedures; and

(3) The Board, a committee of the Board, a respondent in a disciplinary matter pending before the Board, the executive director, or a Board employee engaged in a dispute with the executive director or another employee, may request that the contested matter be submitted to ADR. The request must be in writing, be addressed to the DRC, and state the issues to be determined. The person requesting ADR and the DRC will determine which method of ADR is most appropriate. If the person requesting ADR is the respondent in a disciplinary proceeding, the executive director shall determine if the Board will participate in ADR or proceed with the Board's normal disciplinary processes. The matter may be submitted to ADR only upon approval by all concerned parties.

(4) Any costs associated with retaining an impartial third party mediator, moderator, facilitator, or arbitrator, shall be borne by the party requesting ADR.

(5) Agreements of the parties to ADR must be in writing and are enforceable in the same manner as any other written contract. Confidentiality of records and communications related to the subject matter of an ADR proceeding shall be governed by §154.073 of the Civil Practice and Remedies Code.

(6) If the ADR process does not result in an agreement, the matter shall be referred to the Board for other appropriate disposition.

(j) [ ~~(i)~~ ] If eligibility matters are not resolved informally, the petitioner may obtain a hearing before SOAH by submitting a written request to the staff.

(k) [ ~~(j)~~ ] If disciplinary matters are not resolved informally, formal charges may be filed in accordance with §213.15 of this title (relating to Commencement of Disciplinary Proceedings) and the case may be set for a hearing before SOAH in accordance with §213.22 of this title (relating to Formal Proceedings).

(l) [ ~~(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 in dispute pursuant to §213.20 and §213.21 of this title (Informal Proceedings and Agreed Disposition).

§213.27.Good Professional Character.

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

(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) (No change.)

[ ~~(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.]

(2) [ ~~(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 §213.28 [ ~~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) (No change.)

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

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

(f) (No change.)

§213.28.Licensure of Persons with Criminal Offenses.

(a) This section sets out the considerations and criteria in determining the effect of [ ~~on the eligibility of persons with~~ ] criminal offenses on the eligibility of a person to obtain a license and the consequences that criminal offenses may have on a person's ability to retain or renew a license as a registered nurse or licensed vocational nurse. [ ~~as a registered or vocational 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 or received a deferred disposition for a felony, a misdemeanor involving moral turpitude, or engaged in conduct resulting in the revocation of probation.

(b) The practice of nursing involves clients, their families, significant others and the public in diverse settings. The registered and vocational 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. The Board considers the following categories of criminal conduct to relate to and affect the practice of nursing:

(1) offenses against the person similar to those outlined in Title 5 of the Texas Penal Code . [ ~~because:~~ ]

(A) These offenses include, but are not limited to, the following crimes, as well as any crime that contains substantially similar or equivalent elements under another state or federal law:

(i) Abandonment/Endangerment of a Child {TPC §22.041}

(ii) Agree to Abduct Child for Remuneration: Younger than Eighteen {TPC §25.031}

(iii) Aiding Suicide: Serious Bodily Injury/Death {TPC §22.08}

(iv) Assault, Aggravated {TPC §22.02}

(v) Capital Murder {TPC §19.03}

(vi) Child Pornography, Possession or Promotion {TPC §43.26(a), (e) (Texas Rules of Criminal Procedure Ch. 62)}

(vii) Indecency with a Child {TPC §21.11(TRCP Ch. 62)}

(viii) Indecent exposure (2 or more counts and/or required to register as sex offender) {TPC §21.08 (TRCP Ch. 62)}

(ix) Injury to Child, Elderly, Disabled {TPC §22.04}

(x) Kidnapping {TPC §20.03, §20.04 (TRCP Ch. 62)}

(xi) Manslaughter {TPC §19.04}

(xii) Murder {TPC §19.02}

(xiii) Online Solicitation of a Minor {TPC §33.021(b), (c), (f); (TRCP Ch. 62)}

(xiv) Prostitution, Compelling {TPC §43.05 (TRCP Ch. 62)}

(xv) Protective Order, Violation {TPC §25.07, §25.071}

(xvi) Sale or Purchase of a Child {TPC §25.08}

(xvii) Sexual Assault {TPC §22.011 (TRCP Ch. 62)}

(xviii) Sexual Conduct, Prohibited {TPC §25.02 (TRCP Ch. 62)}

(xix) Sexual Assault, Aggravated {TPC §22.021 (TRCP Ch. 62)}

(xx) Sexual Performance by Child {TPC §43.24 (d), §43.25(b) (TRCP Ch. 62)}

(xxi) Unlawful Restraint {TPC §20.02}

(xxii) Assault {TPC §22.01(a)(1), (b), (c)}

(xxiii) Criminally negligent homicide {TPC §19.05}

(xxiv) Improper Relationship between Educator and Student {TPC §21.12}

(xxv) Improper photography {TPC §21.15}

(xxvi) Obscenity, Wholesale promotion {TPC §43.23(a), (h)}

(xxvii) Prostitution (3 or more counts) or Aggravated Promotion {TPC §43.02, §43.04}

(xxviii) Resisting Arrest, Use of Deadly Weapon {TPC §38.03(d)}

(xxix) Stalking {TPC §42.072(b)}

(xxx) Harassment {TPC §42.07}

(xxxi) Prostitution or Promotion of {TPC §43.02}

(xxxii) Protective Order, Violation {TPC §25.07, §38.112}

(xxxiii) Resisting Arrest {TPC §38.03(a)}

(xxxiv) Deadly conduct {TPC §22.05(a)}

(xxxv) Obscenity, Participates {TPC §43.23(c), (h)}

(xxxvi) Terroristic Threat {TPC §22.07}

(xxxvii) Criminal Attempt or Conspiracy {TPC §15.01, §15.02}

(B) These types of crimes relate to the practice of nursing because:

(i) [ ~~(A)~~ ] nurses have access to persons who are vulnerable by virtue of illness or injury and are frequently in a position to be exploited;

(ii) [ ~~(B)~~ ] nurses have access to persons who are especially vulnerable including the elderly, children, the mentally ill, sedated and anesthetized patients, those whose mental or cognitive ability is compromised and patients who are disabled or immobilized and may be subject to harm by similar criminal behavior;

(iii) [ ~~(C)~~ ] nurses are frequently in situations where they provide intimate care to patients or have contact with partially clothed or fully undressed patients who are vulnerable to exploitation both physically and emotionally;

(iv) [ ~~(D)~~ ] nurses are in the position to have access to privileged information and opportunity to exploit patient vulnerability; and

(v) [ ~~(E)~~ ] nurses who commit these crimes outside the workplace raise concern about the nurse's propensity to repeat that same misconduct [ ~~may raise questions as to whether that same misconduct will be repeated~~ ] in the workplace and raises concerns [ ~~serious questions~~ ] regarding the individual's ability to provide safe, competent care to patients.

(2) offenses against property, e.g., robbery, burglary and theft, etc.[ ~~, because:~~ ]

(A) These offenses include, but are not limited to, the following crimes, as well as any crime that contains substantially similar or equivalent elements under another state or federal law:

(i) Burglary (if punishable under Penal Code §30.02(d)) {TRCP Ch. 62 (§62.001(5)(D))}

(ii) Robbery {TPC §29.02}

(iii) Robbery, Aggravated {TPC §29.03}

(iv) Arson {TPC §28.02(d)}

(v) Burglary {TPC §30.02}

(vi) Criminal Mischief {TPC §28.03}

(vii) Money Laundering >= $1500 {TPC §34.02(e)(1)-(4)}

(viii) Theft >= $1500 {TPC §31.03(e)(4)-(7)}

(ix) Theft <=$1499 {TPC §31.03(e)(1)-(3)}

(x) Vehicle, Unauthorized Use {TPC §31.07}

(xi) Criminal Trespass {TPC §30.05(a),(d)}

(xii) Cruelty to Animals {TPC §42.091}

(xiii) Criminal Attempt or Conspiracy {TPC §15.01, §15.02}

(B) These types of crimes relate to the practice of nursing because:

(i) [ ~~(A)~~ ] nurses have access to persons who are vulnerable by virtue of illness or injury and are frequently in a position to be exploited;

(iii) [ ~~(C)~~ ] nurses have access to persons who frequently bring valuables (medications, money, jewelry, items of sentimental value, checkbook, or credit cards) with them to a health care facility with no security to prevent theft or exploitation;

(iv) [ ~~(D)~~ ] nurses frequently provide care in private homes and home-like settings where all of the patient's property and valuables are accessible to the nurse;

(v) [ ~~(E)~~ ] nurses frequently provide care autonomously without direct supervision and may have access to and opportunity to misappropriate property; and

(vi) [ ~~(F)~~ ] nurses who commit these crimes outside the workplace raise concern about the nurse's propensity to repeat that same misconduct [ ~~may raise questions as to whether that same misconduct will be repeated~~ ] in the workplace and, therefore, place patients' property at risk.

(vii) certain crimes involving property, such as cruelty to animals and criminal trespass, may also concern the safety of persons and, as such, raise concerns about the propensity of the nurse to repeat similar conduct in the workplace, placing patients at risk.

(3) offenses involving fraud or deception . [ ~~because:~~ ]

(A) These offenses include, but are not limited to, the following crimes, as well as any crime that contains substantially similar or equivalent elements under another state or federal law:

(i) Attempt, Conspiracy, or Solicitation of Ch. 62 offense {TRCP Ch. 62}

(ii) Tampering with a Government Record {TPC §37.10}

(iii) Insurance Fraud: Intent to Defraud {TPC §35.02(a-1), (d)}

(iv) Insurance Fraud: Claim > $500 {TPC §35.02(c)}

(v) Insurance Fraud: Claim <=$500 {TPC §35.02 (c)(1)-(3)}

(vi) Medicaid Fraud > $1500 {TPC §35A.02(b)(4)-(7)}

(vii) Medicaid Fraud < $1500 {TPC §35A.02(b)(2)-(3)}

(viii) Criminal Attempt or Conspiracy {TPC §15.01, §15.02}

(B) These types of crime relate to the practice of nursing because:

(i) [ ~~(A)~~ ] nurses have access to persons who are vulnerable by virtue of illness or injury and are frequently in a position to be exploited;

(iii) [ ~~(C)~~ ] nurses are in the position to have access to privileged information and opportunity to exploit patient vulnerability;

(iv) [ ~~(D)~~ ] nurses are frequently in situations where they must report patient condition, record objective/subjective information, provide patients with information, and report errors in the nurse's own practice or conduct;

(v) [ ~~(E)~~ ] the nurse-patient relationship is of a dependent nature; and

(4) offenses involving lying and falsification . [ ~~because:~~ ]

(A) These offenses include, but are not limited to, the following crimes, as well as any crime that contains substantially similar or equivalent elements under another state or federal law:

(i) False Report or Statement {TPC §32.32, §42.06}

(ii) Forgery {TPC §32.21(c), (d), (e)}

(iii) Tampering with a Governmental Record {TPC §37.10}

(B) These crimes are related to nursing because:

(i) [ ~~(A)~~ ] nurses have access to persons who are vulnerable by virtue of illness or injury;

(iii) [ ~~(C)~~ ] nurses are frequently in situations where they must report patient condition, record objective/subjective information, provide patients with information, and report errors in the nurse's own practice or conduct;

(iv) [ ~~(D)~~ ] honesty, accuracy and integrity are personal traits valued by the nursing profession, and considered imperative for the provision of safe and effective nursing care;

(v) [ ~~(E)~~ ] falsification of documents regarding patient care, incomplete or inaccurate documentation of patient care, failure to provide the care documented, or other acts of deception raise serious concerns whether the nurse will continue such behavior and jeopardize the effectiveness of patient care in the future;

(vi) [ ~~(F)~~ ] falsification of employment applications and failing to answer specific questions that would have affected the decision to employ, certify, or otherwise utilize a nurse raises concerns about a nurse's propensity to lie and whether the nurse possesses the qualities of honesty and integrity;

(vii) [ ~~(G)~~ ] falsification of documents or deception/lying outside of the workplace, including falsification of an application for licensure to the Board, raises concerns about the person's propensity to lie, and the likelihood that such conduct will continue in the practice of nursing; and

(viii) [ ~~(H)~~ ] a crime of lying or falsification raises concerns about the nurse's propensity to [ ~~concern that the person may~~ ] engage in similar conduct while practicing nursing and place patients at risk.

(5) offenses involving the delivery, possession, manufacture, or use of, or dispensing , or prescribing a controlled substance, dangerous drug, or mood-altering substance . [ ~~because:~~ ]

(A) These offenses include, but are not limited to, the following crimes, as well as any crime that contains substantially similar or equivalent elements under another state or federal law:

(i) Drug Violations under Health and Safety Code Chs. 481, 482, 483; or

(ii) Driving While Intoxicated (2 or more counts) {TPC §49.09}

(B) These crimes relate to the practice of nursing because:

(i) [ ~~(A)~~ ] nurses have access to persons who are vulnerable by virtue of illness or injury;

(iii) [ ~~(C)~~ ] nurses provide care to critical care, geriatric, and pediatric patients who are particularly vulnerable given the level of vigilance demanded under the circumstances of their health condition;

(iv) [ ~~(D)~~ ] nurses are able to provide care in private homes and home-like setting without supervision;

(v) [ ~~(E)~~ ] nurses who are chemically dependent or who abuse drugs or alcohol may have impaired judgment while caring for patients and are at risk for harming patients; and

(vi) [ ~~(F)~~ ] an offense regarding delivery, possession, manufacture, or use of, or dispensing , or prescribing a controlled substance, dangerous drug or mood altering drug raises concern about the nurse's propensity to repeat that same misconduct [ ~~may raise questions as to whether that same misconduct will be repeated~~ ] in the workplace.

(vii) DWI offenses involve the use and/or abuse of mood altering drugs while performing a state licensed activity affecting public safety; repeated violations suggest a willingness to continue in reckless and dangerous conduct, or an unwillingness to take appropriate corrective measures, despite previous disciplinary action by the state.

(d) Crimes listed under subsections (b)(1)(A)(i)-(xxi), (b)(2)(A)(i)-(iii), and (b)(3)(A)(i) of this section are offenses identified under §301.4535 of the NPA. As such, these offenses require the board to suspend a nurse's license, revoke a license, or deny issuing a license to an applicant upon proof of initial conviction.

(e) [ ~~(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 or received a deferred order for 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.

(f) [ ~~(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 or received a deferred order.

(g) [ ~~(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.

(h) The fact that a person has been arrested will not be used as grounds for disciplinary action. If, however, evidence ascertained through the Board's own investigation from information contained in the arrest record regarding the underlying conduct suggests actions violating the Nursing Practice Act or rules of the Board, the board may consider such evidence as a factor in its deliberations regarding any decision to grant a license, restrict a license, or impose licensure discipline.

(i) [ ~~(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) - (f) [ ~~(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 nursing in accordance with the Nursing Practice Act, Board rules and generally accepted standards of nursing.

(j) [ ~~(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.

(k) [ ~~(i)~~ ] The board shall revoke a license or authorization to practice as an advanced practice nurse upon the imprisonment of the licensee following a felony conviction or deferred adjudication, or revocation of felony community supervision, parole, or mandatory supervision.

(l) [ ~~(j)~~ ] The board shall revoke or deny a license or authorization to practice as an advanced practice nurse for the crimes listed in Texas Occupations Code §301.4535.

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

(a) - (d) (No change.)

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

(f) (No change.)

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

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

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

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

(i) (No change.)

§213.30.Declaratory Order of Eligibility for Licensure.

(a) - (e) (No change.)

(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 of this title (relating to Licensure of Persons with Criminal Convictions):

(1) (No change.)

[ ~~(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 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.]

(2) [ ~~(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 professional character and fitness.

(g) - (h) (No change.)

§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 the State Office of Administrative Hearings (SOAH) when recommending a sanction and the Board in determining the appropriate penalty/sanction in disciplinary cases:

(1) - (13) (No change.)

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

(g) In accordance with the provisions of the Texas Occupations Code and the Nursing Practice Act (NPA), and in keeping with the obligation to protect the consumer of nursing services from the unsafe, incompetent or unprofessional nurse, the Board of Nursing has adopted the following recommended guidelines for disciplinary orders and conditions of probation for violations of the NPA. The purpose of these guidelines is to give notice to licensees of the range of penalties which will normally be imposed upon violations of the provisions in Chapter 301, Subchapter J. The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple violations of the same provision or rule, or other unrelated violations included in the administrative complaint, will be grounds for an enhancement of penalties subject to §301.4531(c)(1) and (2), of the NPA. All penalties at the upper range of the sanctions set forth in the guidelines, such as suspension, revocation, or surrender, include lesser penalties, i.e., fine, remedial education, or probation, which may also be included in the final penalty at the Board's discretion.

(1) In addition to subsection (a) of this section, the Board shall consider the following factors, as set forth in §301.4531(b) of the NPA, when determining the appropriate disciplinary action:

(A) whether the person is being disciplined for multiple violations of the NPA, or its derivative rules and orders;

(B) whether the person has been subject to previous disciplinary action by the Board or any other health care licensing agency in Texas or another jurisdiction and, if so, the history of compliance with those actions;

(D) the threat to public safety; and

(E) any mitigating factors.

(2) The Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions under the authority of §301.453 (a) and (b), of the NPA:

(A) Denial of the person's application for a license, license renewal, or temporary permit;

(B) Approval of the person's application for a license, license renewal, reinstatement of a revoked, suspended or surrendered license, or temporary permit; and set reasonable probationary stipulations as a condition of issuance, reinstatement or renewal of the license or temporary permit. Additionally, the Board may determine in accordance with §301.468, of the NPA, that an order denying a license application, license renewal or temporary permit be probated. Reasonable probationary stipulations may include, but are not limited to:

(i) submit to care, counseling, or treatment by a health provider designated by the Board as a condition for the issuance or renewal of a license;

(ii) submit to an evaluation as outlined in subsection (e) of this section;

(iii) participate in a program of education or counseling prescribed by the Board;

(iv) limit specific nursing activities and/or periodic board review;

(v) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board;

(vi) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing; or

(vii) perform public service which the Board considers appropriate;

(C) Issuance of a Warning. The issuance of a Warning shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:

(i) participate in a program of education or counseling prescribed by the Board;

(ii) practice for a specified period of at least one year under the direction of a registered nurse or vocational nurse designated by the Board;

(iii) perform public service which the Board considers appropriate;

(iv) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing; or

(v) limit specific nursing activities and/or periodic board review;

(D) Issuance of a Reprimand. The issuance of a Reprimand shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:

(i) participate in a program of education or counseling prescribed by the Board;

(ii) practice for a specified period of at least two years under the direction of a registered nurse or vocational nurse designated by the Board;

(iii) perform public service which the Board considers appropriate;

(iv) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing; or

(v) limit specific nursing activities and/or periodic board review.

(E) Limitation or restriction of the person's license, including limits on specific nursing activities or periodic board review:

(F) Suspension of the person's license. The Board may determine that the order of suspension be enforced and active for a specific period or probated with reasonable probationary stipulations as a condition for lifting or staying the order of suspension. Reasonable probationary stipulations may include, but are not limited to, one or more of the following:

(i) Limit the practice of the person to, or excluding, one or more specified activities of professional or vocational nursing;

(ii) submit to an evaluation as outlined in subsection (e) of this section;

(iii) submit to care, supervision, counseling, or treatment by a health provider designated by the Board as a condition for the issuance or renewal of a license;

(iv) participate in a program of education or counseling prescribed by the Board;

(v) practice for a specified period of not less than two years under the direction of a registered nurse or vocational nurse designated by the Board;

(vi) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing; or

(vii) remit payment of the administrative penalty, fine, or assessment of hearing costs.

(G) Acceptance of a Voluntary Surrender of a nurse's license(s);

(H) Revocation of the person's license;

(I) Require participation in remedial education course or courses prescribed by the Board which are designed to address those competency deficiencies identified by the Board;

(J) Assessment of a fine;

(K) Assessment of costs as authorized by §301.461, Texas Occupation Code, and §2001.177, Texas Government Code; or

(L) Require successful completion of a Board approved peer assistance program.

(M) Every disciplinary order issued by the Board will require that the person subject to the order will participate in a program of education or counseling prescribed by the Board which at a minimum will include a review course in nursing jurisprudence and ethics.

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 August 2, 2007.

TRD-200703374

Katherine Thomas

Executive Director

Board of Nurse Examiners

Earliest possible date of adoption: September 16, 2007

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

Chapter 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.17

The Board of Nurse Examiners proposes a new rule, 22 Texas Administrative Code §217.17 (Texas Nursing Jurisprudence Exam) pertaining to Licensure, Peer Assistance and Practice. This new rule is being proposed pursuant to bills passed in the 80th Legislative Session and the Board's Sunset Review. House Bill 2426 (Sunset Bill) amends the Nursing Practice Act by amending section 301.252 (License Application) of the Texas Occupations Code.

Although the jurisprudence exam has not yet been developed and cannot be implemented until September 1, 2008, or later, the Sunset Bill requires the Board to adopt all rules required by the Sunset Bill by January 1, 2008. The new rule is for the purpose of complying with this Bill. This rule will most likely need to be amended when the exam is developed and as the time draws nearer to the actual implementation of the jurisprudence exam requirement. In addition, 22 Texas Administrative Code §§217.2, 217.4, and 217.5 are in the process of being proposed for amendment to include the jurisprudence exam requirement for initial licensure effective September 1, 2008.

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

Katherine Thomas, executive director, has determined that for each year of the first-five year period the proposed new rule is in effect, the public benefit will be that nurses will be more acquainted with the laws and rules that regulate the profession. There will be no cost to small businesses or affected individuals as a result of this proposed rule except for the prospective cost of the jurisprudence exam to initial applicants for a Texas nursing license.

The proposed new rule is pursuant to the authority of Texas Occupations Code §301.151 and §301.152 which authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

Texas Occupations Code §301.252 will be affected by the implementation of this rule.

§217.17.Texas Nursing Jurisprudence Exam (NJE).

(a) In this chapter, when applicants are required to pass the NJE exam, applicants must pass the NJE with a score of 75 or better. Should the applicant fail to achieve a minimum grade of 75 on the NJE, such applicant, in order to be licensed, shall retake the NJE until such time as a minimum average grade of 75 is achieved.

(b) An examinee shall not utilize a proxy or bring books, notes, or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress.

(c) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.

(d) A person who has passed the NJE shall not be required to retake the NJE for another or similar license, except as a specific requirement of the board.

(e) If the applicant should fail one of the examinations, the grade of the examination which the applicant initially passed may be used for the purpose of licensure by examination for a period of two years from the date of passing the initial examination.

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 August 1, 2007.

TRD-200703363

Katherine Thomas

Executive Director

Board of Nurse Examiners

Earliest possible date of adoption: September 16, 2007

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

Part 18. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

Chapter 371. EXAMINATION AND LICENSURE

22 TAC §§371.3, 371.5, 371.7

The Texas State Board of Podiatric Medical Examiners proposes the changes to §371.3, regarding Fees; §371.5, regarding Applicant for License; and §371.7, regarding Qualifications for Licensure. The changes to §371.3 are being proposed to cover the cost of the Article VIII salary increase contingency rider approved by the 80th Legislature for Article VIII agencies. The changes to §371.5 are being proposed to allow provisional applicants an equivalent amount of opportunities to hold a license consistent with the number of times an individual may sit for examination for a license, which is 3 times. The proposed changes to §371.5 are also being proposed to meet the Sunset management requirements adopted by the 79th Legislature to simplify the licensing process for active podiatrists from out of state by eliminating the requirement that they pass a clinical skills exam if it was not required of Texas licensees at the time the out-of-state licensee became licensed. The changes to §371.7 are being proposed to clarify that the University of Texas at Austin will review foreign transcripts. The changes to §371.7 are also being proposed to meet the Sunset management requirements adopted by the 79th Legislature to simplify the licensing process for active podiatrists from out of state by eliminating the requirement that they pass a clinical skills exam if it was not required of Texas licensees at the time the out-of-state licensee became licensed.

Hemant Makan, Executive Director, has determined that, for each year for the first five years the proposed rule amendment is effective, there will be no fiscal implications for state or local government as a result of adopting the section.

Mr. Makan has also determined that, for each year for the first five years the proposed rule amendments are in effect, the public benefit anticipated as a result of adopting the changes for §371.3 will be to retain licensure and enforcement staff to ensure public safety. The public benefit anticipated as a result of adopting the proposed changes for §371.5 will be an increase of access to podiatric medical care by relaxing certain clinical requirements which will allow veteran podiatrists the ability to practice in Texas with expedited license requirements. The public benefit anticipated as a result of adopting the proposed changes for §371.7 will be the assurance that acceptable foreign education meet United States undergraduate standards as qualified by the University of Texas at Austin. The public benefit anticipated as a result of adopting the proposed changes for §371.7 will be an increase of access to podiatric medical care by relaxing certain clinical requirements which will allow veteran podiatrists the ability to practice in Texas with expedited license requirements. There will be no effect on small or micro-businesses. The minimal cost to persons (i.e., licensees) who are required to comply with the proposed change to §371.3 will be $5.00. There will be no minimal costs to persons who are required to comply with the proposed change to §371.5 or §371.7.

Comments on or about the proposed changes may be submitted to Janie Alonzo, Staff Services Officer V, Texas State Board of Podiatric Medical Examiners, P.O. Box 12216, Austin, TX 78711-2216, Janie.Alonzo@foot.state.tx.us.

The changes are being proposed under Texas Occupations Code, §202.151, which provides the Texas State Board of Podiatric Medical Examiners with the authority to adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the laws of this state, and the law of the United States to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry.

The proposed change for §371.3 implements Texas Occupations Code, §202.153, Fees. The proposed change for §371.5 implements Texas Occupations Code, §202.254, Examination and §202.260, Provisional License. The proposed changes for §371.7 implement Texas Occupations Code, §202.252, License Application; §202.254, Examination; and §202.260, Provisional License.

§371.3.Fees.

(a) The fees set by the Board and collected by the Board must be sufficient to meet the expenses of administering the Podiatric Medical Practice Act, subsequent amendments, and the applicable rules and regulations.

(b) Fees are as follows:

(1) Examination--$250 plus $39 fee for HB660 (criminal history record information)

(2) Re-Examination--$250 plus $39 fee for HB660 (criminal history record information)

(3) Temporary License--$125

(4) Extended Temporary License--$50

(5) Temporary Faculty License--$40

(6) Provisional License--$125

(7) Initial Licensing Fee-- $444 [ ~~$439~~ ] plus $5 fee for HB2985

(8) Annual Renewal-- $444 [ ~~$439~~ ] plus $1 fee for HB2985

(9) Renewal Penalty--as specified in Texas Occupations Code, §202.301(d).

(10) Non certified podiatric technician registration--$35

(11) Non certified podiatric technician renewal--$35

(12) Hyperbaric Oxygen [ ~~H.B.O.~~ ] Certificate--$25

(13) Nitrous Oxide Registration--$25

(14) Duplicate License--$50.

(15) Copies of Public Records--The charges to any person requesting copies of any public record of the Board will be the charge established by the appropriate state authority [ ~~Texas Building and Procurement Commission~~ ]. The Board may reduce or waive these charges at the discretion of the Executive Director if there is a public benefit.

(16) Statute and Rule Notebook--provided at cost to the agency.

(17) Duplicate Certificate--$10.

(18) HB660 (criminal history record information)--$39.

§371.5.Applicant for License.

(a) (No change.)

(b) Any person who wishes to sit [ ~~set~~ ] for examination, shall submit a written application on a form provided by the Board. The applicant shall verify by affidavit the information in the application. The Board may refuse to admit to the examination or grant a license to any applicant who knowingly submits false information to the Board.

(j) Provisional License.

(1) Requirements for Provisional License. On application for examination, an applicant may apply for a provisional license under the following circumstances.

(A) The applicant must be licensed in good standing as a podiatric physician in another state, the District of Columbia, or a territory of the United States that has licensing requirements that are substantially equivalent to the requirements of the Podiatric Medical Practice Act, subsequent amendments, and rules and must furnish proof of such licensure on Board forms provided.

(B) The applicant must have passed a national or other examination recognized by the Board relating to the practice of podiatric medicine and must submit a true and correct copy of the applicant's score report.

(C) The applicant must not have been subject to denial [ ~~failed an examination~~ ] for a license by virtue of: [ ~~conducted by the Board.~~ ]

(i) having violated any provision under Texas Occupations Code Chapter 53 or §202.253;

(ii) Applicant of provisional license meeting the requirements of Board rule §371.21 related to "Re-Examination."

(D) The applicant's license to practice podiatric medicine must not have been revoked or suspended in any jurisdiction.

(2) Sponsorship. An applicant for provisional licensure must be sponsored by a person currently licensed by the Board for at least five years and in good standing under the Podiatric Medical Practice Act with the following conditions applicable.

(A) Prior to practice in Texas, on forms provided by the Board, the sponsor licensee will certify to the Board the following:

(i) that the applicant for provisional licensure will be working within the same office as the licensee, under the direct supervision of the sponsor licensee; and

(ii) that such sponsor licensee is aware of the Act and rules governing provisional licensure and that the sponsorship will cease upon the invalidity of the provisional license.

(B) Sponsor licensee will be held responsible for the unauthorized practice of podiatric medicine should such provisional license expire.

(3) Hardship. An applicant for a provisional license may be excused from the requirement of sponsorship of this rule if the Board determines that compliance with this subsection constitutes a hardship to the applicant.

(4) Application and $125 Fee. The Board shall issue a license pursuant to this rule to the holder of a provisional license if:

(A) The applicant for provisional licensure will be subject to all application requirements required by this chapter and subject to the applicable examination fees established under §371.3(b)(1) of this title (relating to Fees). In addition, the applicant will be subject to a fee for issuance of a provisional license.

(B) No provisional license can be issued until all application forms and fees are received in the Board office and the application is approved.

(C) A provisional license expires upon the passage of 180 days or notice by the Board of the applicant's successful passage or failure of all examinations required by this chapter, whichever comes first. It shall be the responsibility of the applicant and sponsor to return the provisional license to the Board office on expiration.

(D) The applicant's failure to sit for the first scheduled Board examination following application for examination invalidates the provisional license, unless in the discretion of the Executive Director sufficient and reasonable evidence regarding nonappearance exists.

(E) A provisional license may be issued a maximum of three times to the same applicant and as provided in Board rule §371.21 related to "Re-examination." [ ~~Each applicant for provisional license shall receive only one nonrenewable license prior to the issuance of a license.~~ ]

(F) If at any time during the provisional licensure period it is determined that the holder of such provisional license has violated the Podiatric Medical Practice Act or Board rules, such provisional license will be subject to disciplinary action including revocation.

(5) At the discretion of the Board, the GPME requirement set forth in §371.7(g) of "Qualifications for Licensure" of this title may be waived if the applicant has been in active podiatric practice for at least five continuous years in another state under license of that state, and upon application to the Board can show an acceptable record from that state and from all other states under which the applicant has ever been licensed.

(6) At the discretion of the Board, the Board may excuse an applicant for a license from the National Board Part III (i.e. PM Lexis) requirement set forth in §371.7(e), "Qualifications for Licensure", if the Board determines that an applicant with substantially equivalent experience was not required to pass a part of an examination related to the testing of clinical skills (i.e. PM Lexis) when the applicant was licensed in this or another state with an acceptable record, provided that the applicant has been in active licensed practice for at least five continuous years and has successfully completed any other course of training reasonably required by the Board relating to the safe care and treatment of patients.

(7) A showing of an acceptable record under this section is defined to include, but is not limited to:

(A) a showing that the applicant has not had entered against him a judgment, civil or criminal, in state or federal court or other judicial forum, on a podiatric medical-related cause of action; no conviction of a felony or a crime of moral turpitude; no disciplinary action recorded from any medical institution or agency or organization, including, but not limited to, any licensing board, hospital, surgery center, clinic, professional organization, governmental health organization, or extended-care facility; and no dishonorable discharge from military service.

(B) If any judgment or disciplinary determination under this subsection, has been on appeal, reversed, reversed and rendered, or remanded and later dismissed, or in any other way concluded in favor of the applicant, it shall be the applicant's responsibility to bring such result to the notice of the Board by way of certified letter along with any such explanation of the circumstances as the applicant deems pertinent to the Board's determination of admittance to licensure in the State of Texas.

(C) The applicant shall obtain and submit to the Board a letter directly from any and all state boards under which he or she has ever been previously licensed stating that the applicant is a licensee in good standing with each said board or that said prior license or licenses were terminated or expired with the licensee in good standing.

§371.7.Qualifications for Licensure.

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

(c) Each applicant shall have completed the number of college courses required by the Texas Occupations Code, §202.252(b)(3), and graduated from an accredited college of Podiatric Medicine in the United States. The applicant's entire course of instruction must be from such an approved college, and the college must have been so approved during the entire course of the applicant's course of instruction. All educational attainments or credits for evaluation under Texas Occupations Code, §202.252(e), must be completed within the United States. The board may not accept educational credits attained in a foreign country that are not acceptable to The University of Texas for credit toward a bachelor's degree. Foreign undergraduate education credits and/or transcripts will be submitted to the Graduate and International Admissions Center at The University of Texas at Austin for evaluation in addition to the applicant submitting a fee payable to UT-Austin in the amount of $100.00. The Board will submit all materials and payment to UT-Austin and will rely on the report from UT-Austin to consider an applicants qualifications under this subsection.

(d) - (i) (No change.)

(j) At the discretion of the Board, the GPME requirement set forth in subsection (g) of this section may be waived if the applicant has been in active podiatric practice for at least five continuous years in another state under license of that state, and upon application to the Board can show an acceptable record from that state and from all other states under which the applicant has ever been licensed.

[ ~~(1)~~ A showing of an acceptable record under this subsection is defined to include, but is not limited to, a showing that the applicant has not had entered against him a judgment, civil or criminal, in state or federal court or other judicial forum, on a podiatric medical-related cause of action, no conviction of a felony or a crime of moral turpitude, no disciplinary action recorded from any medical institution or agency or organization, including, but not limited to, any licensing board, hospital, surgery center, clinic, professional organization, governmental health organization or extended-care facility, and no dishonorable discharge from military service.]

[ ~~(2)~~ If any judgment or disciplinary determination under this subsection, has been on appeal, reversed, reversed and rendered, or remanded and later dismissed, or in any other way concluded in favor of the applicant, it shall be the applicant's responsibility to bring such result to the notice of the Board by way of certified letter along with any such explanation of the circumstances as the applicant deems pertinent to the Board's determination of admittance to licensure in the State of Texas.]

[ ~~(3)~~ The applicant shall obtain and submit to the Board a letter from any and all state boards under which he or she has ever been previously licensed stating that the applicant is a licensee in good standing with each said board or that said prior license or licenses were terminated or expired with the licensee in good standing.]

(k) At the discretion of the Board, the Board may excuse an applicant for a license from the National Board Part III (i.e. PM Lexis) requirement set forth in subsection (e) of this section if the Board determines that an applicant with substantially equivalent experience was not required to pass a part of an examination related to the testing of clinical skills (i.e. PM Lexis) when the applicant was licensed in this or another state with an acceptable record, provided that the applicant has been in active licensed practice for at least five continuous years and has successfully completed any other course of training reasonably required by the Board relating to the safe care and treatment of patients.

(l) A showing of an acceptable record under this section is defined to include, but is not limited to:

(1) A showing that the applicant has not had entered against him a judgment, civil or criminal, in state or federal court or other judicial forum, on a podiatric medical-related cause of action; no conviction of a felony or a crime of moral turpitude; no disciplinary action recorded from any medical institution or agency or organization, including, but not limited to, any licensing board, hospital, surgery center, clinic, professional organization, governmental health organization, or extended-care facility; and no dishonorable discharge from military service.

(2) If any judgment or disciplinary determination under this subsection, has been on appeal, reversed, reversed and rendered, or remanded and later dismissed, or in any other way concluded in favor of the applicant, it shall be the applicant's responsibility to bring such result to the notice of the Board by way of certified letter along with any such explanation of the circumstances as the applicant deems pertinent to the Board's determination of admittance to licensure in the State of Texas.

(3) The applicant shall obtain and submit to the Board a letter directly from any and all state boards under which he or she has ever been previously licensed stating that the applicant is a licensee in good standing with each said board or that said prior license or licenses were terminated or expired with the licensee in good standing.

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 July 30, 2007.

TRD-200703326

Janie Alonzo

Staff Services Officer V

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: September 16, 2007

For further information, please call: (512) 305-7000

Chapter 376. VIOLATIONS AND PENALTIES

22 TAC §376.31

The Texas State Board of Podiatric Medical Examiners proposes the changes to §376.31 regarding Consequences of Background and Criminal History Checks. The changes to §376.31 are being proposed to meet the Sunset management requirements adopted by the 79th Legislature to adopt rules that list the specific offenses that would permit the board to revoke, suspend, or deny a license.

Mr. Makan has also determined that, for each year for the first five years the proposed rule amendments are in effect, the public benefit anticipated as a result of adopting the changes for §376.31 will be clarification of which criminal offenses related to the practice of podiatric medicine are subject to revocation, suspension, or denial of licensure. There will be no effect on small or micro-businesses. There will be no costs to persons who are required to comply with the change to §376.31.

The proposed change for §376.31 implements Texas Occupations Code, Chapter 53, Consequences of Criminal Conviction and Texas Occupations Code, §202.253, Grounds for Denial of License.

§376.31.Consequences of Background and Criminal History Checks.

(a) - (f) (No change.)

(g) Board [ ~~The board shall utilize~~ ] guidelines utilized for determining the reasons why a particular crime is related to the practice of podiatry and other factors that affect the decision as to whether the past criminal history would render the individual ineligible for licensure shall be published on the "Complaints" page of the Board's website.

(h) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 30, 2007.

TRD-200703328

Janie Alonzo

Staff Services Officer V

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: September 16, 2007

For further information, please call: (512) 305-7000

Chapter 389. ORGANIZATION AND STRUCTURE

22 TAC §§389.1, 389.3, 389.5, 389.7, 389.9

The Texas State Board of Podiatric Medical Examiners proposes new §§389.1, 389.3, 389.5, 389.7, and 389.9, regarding Organization and Structure. The new rules §§389.1, 389.3, 389.5, 389.7, and 389.9 are being proposed to meet the Sunset management requirements adopted by the 79th Legislature to implement policies that clearly separate the policy making responsibilities of the board and the management responsibilities of the Executive Director and staff of the board. These new rules also provide remedies for addressing board member conflicts of interest.

Hemant Makan, Executive Director, has determined that, for each year for the first five years the proposed new rules are in effect, there will be no fiscal implications for state or local government as a result of adopting the section.

Mr. Makan has also determined that, for each year for the first five years the proposed new rules are in effect, the public benefit anticipated as a result of adopting the proposed new rules will be the assurance that the board's functions remain mission focused to protect the public from the unsafe of podiatric medicine. There will be no effect on small or micro-businesses. There will be no costs to persons who are required to comply with the new rules.

Comments on or about the new rules may be submitted to Janie Alonzo, Staff Services Officer V, Texas State Board of Podiatric Medical Examiners, P.O. Box 12216, Austin, TX 78711-2216, Janie.Alonzo@foot.state.tx.us.

These rules are being proposed under Texas Occupations Code, §202.151, which provides the Texas State Board of Podiatric Medical Examiners with the authority to adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the laws of this state, and the law of the United States to govern its proceedings and activities, the regulation of the practice of podiatry and the enforcement of the law regulating the practice of podiatry.

The proposed new rules implement the Texas Occupations Code, §202.101, Division of Responsibilities.

§389.1.Purpose.

The purpose of these rules is to avoid, detect, address and remedy conflicts of interest by developing and implementing policies that clearly separate the policymaking responsibilities of the board and the management responsibilities of the executive director and the staff of the board consistent with the Governor's Mission and Governor's Philosophy, Agency Mission and Agency Philosophy and the Strategic Planning Process.

§389.3.Definitions.

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

(1) Board --The Texas State Board of Podiatric Medical Examiners as established and authorized by the Podiatric Medical Practice Act of Texas, Texas Occupations Code, §§202.001, et seq.

(2) Board Member --A person lawfully appointed by the governor to serve a term as set by law on the board.

(3) Executive Director --An employee of the Board who manages the day-to-day operations of the Board.

(4) Investigator --Employee, Agent or Person designated by the board to conduct investigations on behalf of the board. This term includes Podiatric Medical Reviewers.

§389.5.Professional Conduct.

A board member should strive to achieve and project the highest standards of professional conduct. Such standards include:

(1) A board member should not accept or solicit any benefit that might influence the board member in the discharge of official duties or that the board member knows or should know is being offered with the intent to influence official conduct.

(2) A board member should not accept employment or engage in any business or professional activity that would involve the disclosure of confidential information acquired by reason of the official position as a board member.

(3) A board member should not accept employment that could impair independence of judgment in the performance of the board member's official duties.

(4) A board member should not make personal investments that could reasonably be expected to create a conflict between the board member's private interest and the public interest.

(5) A board member should not intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised the board member's official powers or performed the board member's official duties in favor of another.

(6) A board member should be fair and impartial in the conduct of the business of the board. A board member should project such fairness and impartiality in any meeting or hearing.

(7) A board member should be diligent in preparing for meetings and hearings.

(8) A board member should avoid conflicts of interests. If a conflict of interest should unintentionally occur, the board member should recuse himself or herself from participating in any matter before the board that could be affected by the conflict.

(9) A board member should avoid the use their official position to imply professional superiority or competence.

(10) A board member should avoid the use of their official position as an endorsement in any health care related matter. Because an expert witness, by necessity, must disclose the witness's resume, which will include membership on the board, and because any health care related lawsuit could become the subject of a board investigation, a board member should not appear as an expert witness in any case.

(11) A board member should refrain from making any statement that implies that the board member is speaking for the board if the board has not voted on an issue or unless the board has given the board member such authority.

§389.7.Membership and Employee Restrictions.

(a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person may not be a member of the board and may not be a board employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. §§201 et seq.) if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care.

(c) A person may not be a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board.

§389.9.Grounds for Removal.

(a) It is a ground for removal from the board that a member:

(1) does not have at the time of taking office the qualifications required by Texas Occupations Code §202.051 or §202.053;

(2) does not maintain during service on the board the qualifications required by Texas Occupations Code §202.051 or §202.053;

(3) is ineligible for membership under Texas Occupations Code §202.054;

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the board.

(b) The board shall develop and implement an additional "Division of Responsibilities" policy to set forth clarifications and separations of power, and remedies to include penalties for the abuse of any power by a board member or employee.

(c) The validity of an action of the board is not affected by the fact that the action is taken when a ground for removal of a board member exists.

(d) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the president, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists.

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 August 3, 2007.

TRD-200703381

Janie Alonzo

Staff Services Officer V

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: September 16, 2007

For further information, please call: (512) 305-7000