Part 11.
BOARD OF NURSE EXAMINERS
Chapter 211.
GENERAL PROVISIONS
22 TAC §211.6
The Board of Nurse Examiners adopts amendments with changes
to §211.6 pertaining to General Provisions. Section 211.6 specifically
addresses the Committees of the Board. The original proposed amendment was
in the November 10, 2006, edition of the
Texas Register
(31 TexReg 9194). The Board of Nurse Examiners is currently under
"Sunset" review. In September 2006, the Staff of the Texas Sunset Advisory
Commission recommended in its report that the Board adopt "rules regarding
the purpose, structure, and use of its advisory committees, including: the
purpose, role, responsibility, and goal of the committees; size and quorum
requirements of the committees; composition and representation provisions
of the committees; qualifications of the members, such as experience or geographic
location; appointment procedures for the committees; terms of service; training
requirements, if needed; the method the Board will use to receive public input
on issues acted upon by the advisory committees; and the requirement that
the Board comply with the requirements of the Open Meetings Act." In response
to comments, the Board is incorporating a change to paragraph (f)(9) to place
the responsibility of removing a member pursuant to this rule on the Board
or Executive Director and not a volunteer chairperson. In addition, the Texas
Primary Care Educators organization is being removed from the Advisory Committee
on Education (ACE) as they have not been a stakeholder previously involved
and were inadvertently added. Its removal warrants a renumbering of this subsection.
The adopted amendments to §211.6 will comply with Chapter 2110 of
the Government Code pertaining to State Agency Advisory Committees. The main
effect on the Board's existing practice is the "liaison" role of the Board
members. Board members have served as chairpersons of some of the standing
committees, but this rule amendment will revert their roles to "liaison" status.
The organizations who comprise committee membership are substantially the
same. One recommended change made by Staff is the removal of "Texas Primary
Care Educators" from the Advisory Committee on Education (ACE) due to its
inadvertent inclusion on this committee. Texas Primary Care Educators have
never been members of the ACE. Subsequent subclauses will be renumbered to
correct the numbering.
One comment to the proposed amendments was received from the Texas Nurses
Association (TNA). TNA recommended three non-substantive changes as follows:
Comment: Subdivision (f)(6) requires each committee to provide notice of
meetings on the Secretary of State's website. TNA believes this may be a more
appropriate role for the BNE staff appointed to support the committee.
Response: The Board does not agree that a change is needed to the proposed
amendments to clarify whose specific responsibility it is to post the meetings
on the Secretary of State's web site. The Board agrees that the BNE Staff
is in the better position to submit the notice of meetings to the Secretary
of State's web site; however, the committee is in the best position to determine
the time and agenda of the meeting. The Board's position is that once that
decision is made, the Staff person assigned by the Executive Director to support
the committee will then take the appropriate steps to make sure sufficient
notice is provided to the public. The committee members would not have the
ability to access the necessary web site to publicize the meeting.
Comment: Subdivision (f)(9) authorizes the committee chair to remove members
for lack of attendance. TNA is not sure it is feasible to charge a volunteer
chair with the responsibility to remove a committee member. The members are
appointed by the Board and it would seem more appropriate and practical for
the Board or Executive Director to remove a member.
Response: The Board agrees with this comment and will change the paragraph
to incorporate this comment.
Comment: Subdivision (f)(2) states the Board may amend the committee membership
as needed. TNA assumes the intent is that any change would occur by amending
Subdivision (f)(1) that sets out the membership for the various advisory committees
but this is not entirely clear from the wording of (f)(2).
Response: The Board disagrees that a change is needed to the currently
proposed amendments. The Board's advisory committees must maintain a certain
amount of fluidity to allow for the changes that occur in membership organizations.
These organizations may cease to exist, may choose not to participate, may
change names, etc. Paragraph (f)(2) is for the purpose of allowing for the
unforeseen changes that occur with committee memberships and to make a quorum
possible; therefore, the paragraph is not for the purpose of allowing the
Board the opportunity to engage in arbitrary committee changes. Any permanent
changes to committee membership would be incorporated in a rule amendment
as soon as possible.
The amendments are adopted 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.
§211.6.Committees of the Board.
(a)
The following are standing and permanent committees of
the board, as established by the board in accordance with the Nursing Practice
Act. The responsibilities and authority of these committees include those
duties and powers as set forth including other responsibilities and charges
which the board may from time to time delegate to these committees.
(b)
Eligibility and Disciplinary Committee.
(1)
Members of the committee shall be appointed by the president
and shall consist of one consumer member and two nurse members. The President
shall have authority to substitute committee members when necessary to establish
a quorum due to absences of standing members.
(2)
The chair shall be named by the president.
(3)
Duties and powers. The disciplinary committee shall have
the authority to determine matters of eligibility for licensure and discipline
of licenses, including temporary suspension of a license, and administrative
and civil penalties.
(4)
Quorum. Two eligible voting members shall establish a quorum
of the Committee of which at least one member is a nurse.
(5)
Tele-conference. A meeting by the Committee may be held
by telephone conference call or video conference call as authorized by Texas
Government Code chapter 551.
(c)
Education Liaison. The three board members representing
nursing educational programs shall serve as advisory to the staff on matters
pertaining to faculty waivers, proposed curriculum revisions and other issues
that may arise between regular board meetings. The recommendations of the
liaison members are presented to the board at the next regular meeting for
consideration.
(d)
Advanced Practice Liaison. Three members shall be designated
by the president to serve as advisory to the staff on matters pertaining to
advanced practitioner waivers and other issues that may arise between regular
board meetings. The recommendation of the liaison members are presented to
the board at the next regular meeting for consideration.
(e)
Other standing or ad hoc committees. The board may designate
other standing or ad hoc committees as deemed necessary. Such committees shall
have and exercise such authority as may be granted by the board.
(f)
Advisory Committees. The president may appoint, with the
authorization of the board, advisory committees for the performance of such
activities as may be appropriate or required by law.
(1)
The board has established the following committees that
advise the board on a continuous basis or as charged by the Board:
(A)
the Advanced Practice Nursing Advisory Committee (APNAC)
advises the Board on practice issues and regulations that have or may have
an impact on advanced practice nursing. The APNAC is comprised of representatives
from the following:
(i)
Texas Association of Nurse Anesthetists (TANA);
(ii)
Coalition for Nurses in Advanced Practice (CNAP);
(iii)
Texas Nurse Practitioners (TNP);
(iv)
Consortium of Texas Certified Nurse-Midwives (CTCNM);
(v)
Texas Clinical Nurse Specialists (TXCNS);
(vi)
Texas Organization of Nurse Executives (TONE);
(vii)
Texas Nurses Association (TNA);
(viii)
CRNA Educator;
(ix)
CNS Education;
(x)
CNM Education;
(xi)
NP Educator; and
(xii)
other members approved by the Board.
(B)
the Advisory Committee on Education (ACE) advises the Board
on education and practice issues that have or may have an impact on the regulation
of nursing education in Texas. The ACE is comprised of representatives from
the following:
(i)
Licensed Vocational Nurses Association of Texas (LVNAT);
(ii)
Texas Association of Vocational Nurse Educators (TAVNE);
(iii)
Texas Organization of Baccalaureate and Graduate Nursing
Education (TOBGNE);
(iv)
Texas Organization of Associate Degree Nursing (TOADN);
(v)
Texas League for Vocational Nursing (TLVN);
(vi)
Texas Organization of Nurse Executives (TONE);
(vii)
Texas Nurses Association (TNA);
(viii)
Texas Association of Deans and Directors Professional
Nursing Programs (TADDPNS);
(ix)
various educators in Texas nursing programs;
(x)
interested state agencies; and
(xi)
other members approved by the Board.
(C)
the Nursing Practice Advisory Committee (NPAC) reviews
and analyzes issues that affect the practice of nursing. The NPAC is comprised
of representatives from the following:
(i)
Licensed Vocational Nurses Association of Texas (LVNAT);
(ii)
Texas Association of Vocational Nurse Educators (TAVNE);
(iii)
Texas League for Vocational Nursing (TLVN);
(iv)
Texas Organization of Nurse Executives (TONE);
(v)
Texas Nurses Association (TNA);
(vi)
Texas School Nurses Organization (TSNO);
(vii)
Texas Department of Aging and Disability Services (DADS);
(viii)
Texas Association for Home Care (TAHC);
(ix)
Texas Department of State Health Services (DSHS);
(x)
Texas Association of Homes and Services for the Aging (TAHSA);
(xi)
Texas Hospital Association (THA); and
(xii)
other members approved by the Board.
(2)
The Board may amend the committee memberships as needed.
(3)
A board member or members appointed by the President of
the board or the board may serve as a liaison(s) to a committee and report
to the Board the recommendations of the committee for consideration by the
Board.
(4)
Each committee shall select from among its members a presiding
officer who shall report to the agency or Board as needed.
(5)
Each committee's work and usefulness shall be evaluated
annually.
(6)
The committees will provide notice of meetings, as feasible,
on the Secretary of State's web site to allow the public an opportunity to
participate.
(7)
The Executive Director shall appoint staff to support the
committee.
(8)
The committee may consult with the board liaison(s) to
authorize the committee to investigate identified topics or issues pending
the development and communication of a formal charge by the Board.
(9)
Committee members will be expected to attend meetings.
The chairperson has the discretion to recommend the dismissal of a member
who does not regularly attend. The Board or Executive Director has the authority
to approve the dismissal of a member.
(10)
Advisory committees chairs may invite individuals as expert
resources to participate in committee discussions and deliberations. Invited
experts serve as ad hoc members and do not have voting privileges.
(11)
The committees will meet on a schedule established by
the chair of each committee.
(12)
The decisions of the committee are advisory only.
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 February 22, 2007.
TRD-200700695
Katherine Thomas
Executive Director
Board of Nurse Examiners
Effective date: March 14, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 305-6823
22 TAC §213.28, §213.33
The Board of Nurse Examiners adopts amendments to §213.28
and §213.33, pertaining to Practice and Procedure. Section 213.33 is
adopted with changes to the proposed text as published in the November 10,
2006, issue of the
Texas Register
(31 TexReg
9196). Section 213.28 is adopted without changes and will not be republished.
In §213.33(e), an additional sentence was added; and in subsection (f)(3),
a comma was replaced with a semicolon. Sections 213.28 and 213.33 specifically
address Licensure of Persons with Criminal Convictions and Factors Considered
for Imposition of Penalties/Sanctions and/or Fines, respectively. These adopted
amendments were reviewed by the Board's Eligibility and Disciplinary Task
Force at its open meeting on October 13, 2006, and approved for recommendation
to the Board for proposal and adoption.
In September 2006, the staff of the Texas Sunset Advisory Commission recommended
in its report that the Board more clearly identify which crimes relate to
the practice of nursing. The proposed amendments to §213.28 attempts
to incorporate this recommendation into the Board's rules. The Board evaluated
the crimes that other professions have identified as affecting their professions
and the rationale provided by those professions. The Board believes that due
to the nature of nursing, the crimes that may affect nursing are broad. The
practice of nursing is in essence the "front line" of health care provision.
The scope of the nursing profession allows nurses to have unfettered access
to people and their property more than any other profession. Nurses attend
to people at their most vulnerable state and provide care to the most vulnerable
individuals in our society the elderly, children, the mentally ill, sedated
and anesthetized patients, patients whose mental or cognitive ability is compromised
and patients who are disabled and immobilized. The provision of care can be
in private homes and home-like settings without direct or, at times, without
any supervision. Because of this scope and level of trust required of a nurse,
he/she must possess professional character and integrity. The legislature
has recognized the need to review criminal backgrounds prior to licensure,
Tex. Occ. Code §301.2511, and that crimes may affect licensure eligibility
in general, Tex. Occ. Code Ch. 53. The legislature has recently identified
specific crimes that bar licensure.
See
Tex.
Occ. Code §301.4535. The scope and nature of nursing require that nurses
not commit crimes against persons, not commit crimes against property, be
of sound mind and not under the influence of mood-altering substances, be
truthful and honest, and be accountable for their actions. For these reasons,
a wide variety of criminal acts affect the practice of nursing. To better
inform the public and profession of how crimes may affect licensure determination
by the Board and to address these issues and the concerns of the Sunset Advisory
Committee, the Board proposes amendments to 22 Texas Administrative Code §213.28.
The practice of nursing requires professional character and integrity.
Due to the necessity of these qualities, the Board or the Executive Director
may request that nurses under investigation or nurse applicants with eligibility
issues undergo a psychiatric/psychological evaluation or a forensic psychological
evaluation as prescribed by the Board to assess whether the individual may
continue to pose a risk to the public health and safety of the public as a
nurse that is suggested by the known criminal conduct. The evaluation is voluntary
and must be obtained at the licensee's own expense. The evaluation may offer
mitigating and/or aggravating information to the investigation of a nurse
or nurse applicant.
The amendment to §213.33 relates to a psychological/psychiatric evaluation
to determine mental fitness and a more specialized evaluation that addresses
the criminal element of unprofessional conduct. The underlying issues may
deal with honesty, chemical dependency, and/or fitness to practice. The board
has utilized the forensic evaluation for several years, so the amendment is
for the purpose of placing this practice in §213.33, Factors Considered
for Imposition of Penalties/Sanctions and/or Fines, to address the risk assessment
evaluation. In §213.33, the Board has attempted to generally outline
the nature of the evaluation which it would view as credible and reliable.
The rule is designed to be flexible and have general applicability.
Three comments were received in response to proposed amendments to §213.28
and §213.33. A letter of comment was received from the Texas Nurses Association
(TNA) and from two individuals.
The comments to §213.28 are as follows:
Comment: TNA and one individual contend that the proposed amendments to §213.28
do not achieve their stated goal of implementing the Sunset staff report Recommendation
2.1 (Require the Board to more clearly identify which crimes relate to the
practice of nursing). In citing Recommendation 2.1, TNA states: 2.1 Require
the Board to more clearly identify which crimes relate to the practice of
nursing. This recommendation would clarify the Board's responsibility to adopt
guidelines that follow the requirements of Chapter 53 of the Occupations Code
by specifically requiring the Board to develop rules defining which crimes
relate to an individual's ability to practice nursing. Reading the Nursing
Practice Act with Chapter 53 would allow the Board to take action against
an applicant or licensee who committed a crime including a crime that resulted
in a disposition other than a conviction, such as deferred adjudication identified
by the Board as relating to the practice of nursing. While the Board should
have authority to consider each case on its own merits, identifying those
crimes that most directly and consistently relate to the practice of nursing
would allow the Board to prioritize its licensing and enforcement efforts
related to criminal activity, and thus allow the Board to better allocate
its resources. Simply defining all crimes as related to the practice of nursing
does not meet the intent of the Legislature and is not the norm among health
licensing agencies.
The individual states that the "Occupations Code states that the Board
may take action for a felony or a misdemeanors involving moral turpitude or
conduct resulting in revocation of probation. The Legislature determined which
crimes they consider to be of concern and those are listed in §301.4535
of the Occupations Code. These rules need to be withdrawn and re-drafted to
reflect crimes that directly relate to the practice of nursing."
Response: The Board disagrees that it has not more clearly identified the
types of crimes that relate to nursing. Although the amendments do not list
specific crimes, it does identify those categories of crimes whose elements
would constitute unprofessional conduct as defined by the Legislature and
Board rules. The Board's rule is to provide guidance to nurses who want to
practice in this state. The Board has not gone through the Penal Code in its
rule to specifically identify each offense listed therein to determine its
applicability to nursing. Likewise, the Board does not intend to go through
each State's Penal Code to identify those specific crimes that nurses who
come in from other states need to be aware may be an impediment to an unencumbered
license. The Board, however, has adopted a disciplinary grid that lists specific
crimes listed in the Texas Penal Code that the Board views as affecting the
practice of nursing and how. Sunset recommended that the Board look at the
Department of Licensing and Regulation's (TDLR) guidelines. TDLR's guidelines
are categorized similarly as the Board has implemented into rule; therefore,
the Board believes that the amendments define and provide ample guidance regarding
types of crimes it feels affect the practice of nursing in compliance with
the Sunset Advisory report. In addition, the Board disagrees with the individual's
comment that seems to imply that the only crimes that directly relate to the
practice of nursing were defined by the Legislature in §301.4535. The
crimes listed in §301.4535 are bars to licensure. Crimes exist that are
not serious enough to automatically prevent an individual from being a nurse
but are serious enough to be considered an impediment to licensure or an unencumbered
license. The Board disagrees that the rules should be withdrawn and redrafted
to reflect crimes that directly relate to nursing, because the requirements
of Chapter 53 do not require the individual crimes to be listed in rule but
in guidelines.
Comment: TNA and one individual contend that the amendments appear to be
based on a standard of what crimes "relate" to nursing as opposed to "directly
relate" to nursing per Chapter 53 of the Occupations Code. While TNA does
believe the crimes that directly relate to nursing are quite broad, it does
not believe that all crimes do so. While it may be difficult, TNA believes
it should be possible to draw more useful lines than is done by the proposed
amendments. At the very least, it should be possible to exclude certain offenses,
for example, Class B or C Misdemeanors or possibly crimes in which the culpable
mental state is criminal negligence (though this would include negligent homicide)."
Response: The Board agrees with TNA that the crimes that relate to nursing
are quite broad. The Board disagrees that it needs to specifically identify
the types of crimes that relate to nursing in its rule. Chapter 53 of the
Occupations Code requires guidelines that delineate specific crimes, and the
Board has created the guidelines in the disciplinary grid which states each
specific crime. Although the amendments do not list specific crimes, it does
identify those categories of crimes whose elements would constitute unprofessional
conduct as defined by the Legislature and Board rules. The Board's rule is
to provide guidance to nurses who want to practice in this state. The Board
has not gone through the Penal Code in its rule to specifically identify each
offense listed therein to determine its applicability to nursing. Likewise,
the Board does not intend to go through each State's Penal Code to identify
in its rule those specific crimes that nurses who come in from other states
need to be aware may be an impediment to an unencumbered license. The Board,
however, has adopted a disciplinary grid that lists specific crimes listed
in the Texas Penal Code that the Board views as affecting the practice of
nursing and how. Sunset recommended that the Board look at the Department
of Licensing and Regulation's (TDLR) guidelines. TDLR's guidelines are categorized
similarly as the Board has implemented into rule; therefore, the Board believes
that it has defined and provided ample guidance regarding types of crimes
it feels affect the practice of nursing in compliance with the Sunset Advisory
report. The Board cannot make a distinction regarding the level of crime without
knowing the specific nature of the crime. "Indecent exposure" is a class B
misdemeanor, yet if an individual gets two misdemeanor "indecent exposures,"
he/she is required to register with the sex offender registry, and pursuant
to Tex. Occ. Code Ann. §301.4535(16), he/she is barred from licensure;
therefore, the Board is not comfortable making a specific distinction. The
Board, however, does give weight to the level of the criminal conduct.
Comment: An individual states that subsection (j) is not required "because
the authority to take action on any nurse's license is already granted under §301.4535
of the Occupations Code. The proposed subsection (j) is too vague and appears
to exceed statutory authority."
Response: The Board agrees that the authority to take action on any nurse's
license for the offenses in §301.4535 is granted. Subsection (j) clarifies
that the authority under §301.4535 extends to authorization to practice.
The Board believes subsection (j) is a reasonable and consistent interpretation
of its statutory authority under §301.4535. The Board, therefore, disagrees
that subsection (j) is too vague and exceeds statutory authority.
Comment: TNA states that the use of terminology "criminal offense" is confusing
since the "offense" is the underlying conduct regardless of any action (arrest,
deferred adjudication, conviction) taken by the criminal justice system on
the basis of the offense or conduct. Is the intent that the BNE could take
disciplinary action on basis of conduct that constitutes a criminal offense
even though there has been no action taken against the nurse by the criminal
justice system? If the intent is to authorize the taking of action based on
an arrest, then that should be explicitly stated. If not, then terminology
should probably be "conviction or deferred adjudication" rather than "offense."
The individual comments that the term "offense" is overly broad.
Response: The Board disagrees that the term "offense" is confusing and
too broad and that its terminology needs to be clarified. The Board agrees
that the amendment seeks to make the term "offense" general enough to include
deferred adjudication or other criminal action other than "conviction." Not
all criminal conduct is prosecuted by the judicial system as a "conviction,"
so the Board may take action on conduct which is a violation of the Nursing
Practice Act (NPA) even though no action was taken by the criminal justice
system. For example, when a nurse misappropriates drugs, the facility may
not report the conduct to the authorities, but the conduct is still a criminal
offense and in violation of the Health and Safety Code. Though the criminal
justice system does not take action, the offense may involve theft, falsification
of medical documents, being under the influence of drugs, etc. The conduct
is criminal and the Board will take the appropriate steps to assure the public
that the nurse can safely practice nursing. The Board disagrees that the use
of "offense" can be interpreted to authorize agency action based on arrest
information. The Board, however, may be interested in investigating the underlying
conduct when there is pending criminal charges due to the nature of the conduct
and impending judicial action which may be a violation of the NPA.
Comment: One individual comments that the following statements are overly
broad and include matters outside the Board's authority in §301.452 and §301.4535
of the Texas Occupations Code and the Board should be required to specifically
delineate precisely which crimes pertain to each:
(a)(1) Offenses against the person similar to those outlined in Title 5
of the Texas Penal Code. . .;
(a)(2) Offenses against property, e.g., robbery, burglary, and theft, etc.,.
. .;
(a)(3) Offenses involving fraud and deception. . .;
(a)(4) Offenses involving lying and falsification. . . .
Response: The Board disagrees that the statements are overly broad and
include matters outside the Board's authority in §301.452 and §301.4535
of the Nursing Practice Act. The behaviors outlined in the proposed rule language
constitute unprofessional conduct in almost any profession. The categorized
offenses in the rule are specifically in violation of the Board's criteria
for "professional character" as defined in rule 213.27 through 213.28. Due
to the nature of nursing and the potential unfettered access nurses have to
personal information, belongings, and dwellings without supervision, the Board
believes that it does have the authority to expect and require nurses to have
professional character and, therefore, not commit criminal offenses against
individuals and their property and to be truthful, forthright, and accountable
for their actions. The public expects nurses to have professional character
and the legislature has granted the Board the authority to require it.
Comment: One individual states that "subsection (i) is not required because
this issue is covered under Chapter 53 of the Occupations Code. The inclusion
of "deferred adjudication" goes beyond the statutory authority."
Response: The Board disagrees that subsection (i) is not required. This
subsection is not in conflict with Chapter 53 and the Board has found that
many nurses and their attorneys are unfamiliar with the requirements of Chapter
53. The subsection is in rule to reiterate the requirement of Chapter 53.
In addition, the Board's enabling legislation, Tex. Occ. Code §301.452(b)(3),
specifically includes "deferred adjudications" with "convictions."
Comment: TNA states that although subsection (c)(1) - (8) are not proposed
for amendment, paragraphs (1) and (2) would appear to become unnecessary if
proposed new specific crimes language in subsection (b)(1) - (5) are adopted
and likewise, paragraphs (7) - (8) would appear to become unnecessary if proposed
new subsections (i) - (j) relating to imprisonment are adopted.
Response: The Board disagrees that the paragraphs cited are not necessary
due to the proposed amendments. Paragraphs (1) and (2) repeat the statutory
language of Occ. Code §301.452(b) and do not conflict or create ambiguity
with the proposed language. Paragraph (1) may or may not constitute criminal
conduct and the proposed amendments more clearly delineate the felony or misdemeanor
conduct of paragraph (2) that concerns the Board. Paragraphs (7) and (8) state
considerations for the Board but the proposed subsections (i) and (j) reflect
the language of Chapter 53 of the Occupations Code. The proposed rule language
appears to complement the existing language; however, the Board will continue
its review of all of the rule for ambiguity and redundancy when it conducts
its rule review of Chapter 213, if not sooner.
Comment: One individual states that the "board places no time limit on
the date of convictions or deferred Orders. Prior to the merger of the Board
of Nurse Examiners and the Board of Vocational Nurse Examiners, LVNs were
not even asked about deferred adjudication. For the Board to now consider
criteria previously not applicable to vocational nurses is over-reaching.
The Board did not have statutory authority to discipline any nurse for deferred
adjudication until September 1, 2005. The date of the offense should confer
jurisdiction and a limitations period is necessary."
Response: The Board agrees that no time limit has been placed on the date
of convictions or deferred Orders and that LVNs were not asked about deferred
adjudications prior to the merger of the Board of Vocational Nurse Examiners
and the Board of Nurse Examiners in February 2004. Jurisdiction, however,
is not conferred by the Board but by the legislature and the legislature alone
provides a limitations period. The Board agrees that it did not have the statutory
authority to discipline for the deferred order on its face; however, it disagrees
that it did not have the statutory authority to discipline nurses for the
underlying conduct that served as the basis for the deferred order if the
conduct is otherwise a violation of the standards associated with LVN licensure.
Prior to the statutory authority granted by the Legislature regarding deferred
adjudications, both Boards had statutory authority to discipline for "unprofessional
conduct" and both boards had rules that addressed specific acts of "unprofessional
conduct" which served and serve as the basis for investigating deferred adjudications.
The Board's concern for its failure to investigate deferred adjudications
was heightened when it became aware that nurses who had admitted guilt, received
deferred orders, and were registered sex offenders, were practicing nursing
without restrictions, and were providing care to the most vulnerable members
of the public in autonomous situations. Subsequent to this awareness, the
legislature specifically included "deferred adjudications" in the Board's
enabling legislation. The Board believes it has and had the statutory authority
to take action on conduct deemed to be unprofessional and, therefore, has
not overreached its statutory authority.
Comment: One individual states that the board needs to provide data to
support the following statement in subsection (a)(5), "offenses regarding
delivery, possession, manufacture or use of or dispensing or prescribing a
controlled substance, dangerous drug or mood altering drug may raise questions
as to whether the same misconduct will be repeated in the workplace. . . ."
Response: The Board disagrees that it needs to provide the specific data
the individual requests in response to a comment. The Board would point out
that the definition of professional nurse includes "administering of medication"
and it seems axiomatic that when the quintessential function of nursing is
"dispensing and giving medication" that any offense regarding delivery, possession,
or use of a controlled substance in an illegal manner raises questions about
whether that misconduct can occur in the workplace. The Board's experience
with and concern regarding individuals who are chemically dependent on mood
altering substances, abuse controlled substances, or who engage in criminal
behavior involving the same is that an individual's need or desire for the
mood-altering substance may potentially override the responsibility to provide
appropriate care to the patients. Because the practice of nursing provides
more opportunity for an individual to have access to and, therefore, engage
in the use of mood altering substances, the potential threat to the safety
of patients will be investigated by the Board.
Comment: One individual states that the board needs to provide data to
support the statement, regarding nurses who commit offenses against property,
e.g., robbery, burglary, and theft, outside the workplace may raise questions
as to whether the same misconduct will be repeated by the nurse in the workplace,
and therefore, place patient's property at risk.
Response: The Board disagrees that it needs to provide the specific data
the individual requests in response to a comment. The Board's concern as stated
in the rule with individuals who possess the propensity to commit crimes against
property, however, is that the practice of nursing would allow further opportunity
for an individual to further engage in crimes against property. Nurses have
access to people's valuables, their homes, their personal information, etc.,
and the Board is concerned that this access will allow the recidivism of the
previous criminal conduct unless the factors listed in rule 213.33 provide
mitigation to the contrary. In addition, the public would have concerns with
an individual who has a criminal past involving offenses against property
providing care to them in a vulnerable state and having access to their personal
items.
In response to §213.33, the comments are
as follows:
Comment: TNA states that "subsections (e) and (f)(1)(E) state that the
evaluation be "designed to test the . . . veracity of the applicant or licensee."
TNA assumes the intent of this language is to permit or recognize the use
of a polygraph test as part of the evaluation. TNA has significant reservations
about the use of polygraph tests, and believes that if polygraph tests are
to be performed as part of the evaluation, then this should be explicitly
stated in the rules. It also believes the rules should set out specific guidelines
or criteria for when a polygraph test will be used as part of the evaluation
and for assuring there are safeguards in place against inappropriate use.
TNA also believes that the consent signed by the nurse/applicant for the evaluation
state explicitly that the evaluation will/may include a polygraph test." One
individual comment voices a similar concern and also states that a polygraph
is "not reliable, valid or admissible in Texas" and she does not believe "that
polygraphy could withstand a Daubert challenge."
Response: The Board agrees that the polygraph exam may be used as a tool
by the forensic evaluator. The Board's experience with the evaluator's use
of polygraph is varied, but generally, the polygraph has been a tool reasonably
relied upon in performing evaluations. It is but one assessment tool which
may be used. Therefore, the rule recognizes the broader category of tests
used to evaluate veracity. The Board's experience is that polygraphs can be
beneficial when conflicting stories are presented regarding allegations being
investigated by the Board. The polygraph does not stand alone. It is one of
several factors that may be used by the evaluator. The individual is informed
when a polygraph is requested in conjunction with the evaluation, but the
Board will modify the consent form for the evaluation to include the specific
language regarding the possibility of a polygraph. Polygraphs are not generally
requested in psychological/psychiatric evaluations, but are more prevalent
in the forensic psychological evaluation when the "veracity" of the individual's
version of the event is in question, e.g., the individual's interpretation
of events versus the police report or other witnesses' testimony. The Board
is aware of the limitations of the use of a polygraph exam in evidentiary
hearings, but has relied on its common use by evaluators. The request is not
mandatory and the individual has the right to refuse to obtain an evaluation.
Comment: TNA contends that "subsections (e) and (f)(1) use the terminology
"the Board or Executive Director may request . . ." which makes it unclear
if the nurse or applicant can refuse the evaluation. TNA's understanding is
that the evaluation is voluntary, and if so the rule should make this clear."
Response: The Board disagrees that the "may request" language is unclear
regarding whether the evaluation is voluntary. The evaluation is a factor
considered in determining the appropriate sanction, if any, that should be
imposed. It is not uncommon for the Board to request an evaluation from individuals
whose past conduct would be a barrier to licensure, but a positive evaluation
would justify the Board's approval. The Board, however, will consider guidelines
regarding evaluations to be posted on its web site in the near future after
the rule amendments are adopted and the Board's Eligibility and Disciplinary
task force has had the opportunity to review and advise the Board.
Comment: One individual states that §213.33 is intended for use once
a determination has been made that discipline is indicated. Psychological
evaluations determine whether a need for disciplinary action exists, so these
proposed rules do not belong under §213.33.
Response: The Board disagrees. The evaluations are a factor used in making
a determination in resolution of a case. Evaluations are generally requested
to provide additional information to the Board as to whether an individual
is safe to practice nursing or whether an individual poses a threat to patient
safety based on the factors considered by the evaluator; therefore, the conclusions
and recommendations of a qualified evaluator who has reviewed the case constitute
factors to be considered by the Board in determining an appropriate remedy.
Comment: TNA contends that neither "subsection (e) nor (f) set out any
standards or criteria for when a nurse would be requested to have a psychological/psychiatric
examination nor are any parameters set on how the evaluation will be used.
Rather, both sections only address the process to be used once a decision
is made that an evaluation will be requested." An individual states in her
comment that the criteria should be stated in the appropriate rules relating
to criminal conduct, mental or chemical dependency fitness issues, or in the
cases involving sexual misconduct. One individual does not believe that a
forensic evaluation is beneficial and that a psychiatric/ psychologist evaluation
is sufficient.
Response: The Board disagrees that no standards are specifically set out,
since the Board assumes that the "factors" in §213.33 will be considered,
and specifically relevant information about "evidence of present fitness to
practice" as stated in §213.33(a)(5). The psychological/ psychiatric
evaluation is designed to provide an expert opinion regarding the mental fitness
of an individual and the forensic evaluation would provide an expert opinion
regarding "fitness" to be a safe practitioner, the "potential harm" the nurse
may provide to clients or the public, provide mitigating or aggravating factors,
and forensic evaluations are provided in the criminal justice system to determine
the potential that the person will engage in subsequent conduct that may make
him/her unsafe to practice. The parameters of an evaluation are dictated mainly
by the professional expertise of the evaluator. The evaluators are recognized
and approved based on their knowledge of how to conduct the evaluation. The
Board does not have jurisdiction to dictate the scope of practice for a psychologist
or psychiatrist who has the expertise to perform the fitness evaluation. The
criminal justice system uses forensic evaluations and the Board has found
these evaluations governed by the forensic credentialing entities may be very
beneficial when considering an appropriate sanction that protects the public
but is fair to the nurse.
Comment: TNA contends that the "release the nurse is required to sign by
both subsections (e) and (f)(2) is very broad and apparently the evaluation
is not limited in what it can cover or how the information uncovered can be
used even if unrelated to the original reason for evaluation. If the nurse
is consenting to the BNE's using the evaluation for any purpose the BNE determines
appropriate, then the scope of use should be clearly stated in the consent
the nurse is asked to sign. TNA also believes it would be desirable if the
consent identify that the evaluation will be performed by a psychologist/psychiatrist
selected or approved by the BNE. In summary, TNA believes that the consent
signed by the nurse include sufficient detail that the nurse knows precisely
what she or he is consenting to." One individual commented that instead of
"forcing a nurse to utilize an evaluator on an approved 'list,' the Board
should publish the minimum acceptable criteria with regard to education, specific
credentials and experience for a psychologist or psychiatrist to possess in
order to conduct an evaluation that is acceptable to the Board." Another individual
stated that the board should not approve evaluators.
Response: The Board agrees that it uses a general release form for all
of its evaluations and the evaluation is not limited. The Board's
only
purpose for the evaluation is to obtain an expert opinion determining
whether an individual is safe to practice nursing or poses a risk when evidence,
e.g., criminal conduct, behavior at work, etc., may suggest that he/she does.
The evaluation based on objective criteria, however, may show that the individual's
potential risk is minimized because of the individual's subsequent maturity,
rehabilitation or that the risk is minimized if his/her license is subject
to stipulations, e.g., counseling, supervision, education, etc. The evaluation
may also show that the individual is not safe to practice. The Board admits
that information often emerges in an evaluation that was beyond the Board's
knowledge prior to obtaining the evaluation.
The Board disagrees that it is "forcing" the nurse to submit to an approved
list. The Board also disagrees that it should not approve evaluators. The
Board has a forensic evaluator list that is Board-approved; however, it is
not an all-inclusive list and the Board does not force a nurse to use the
list. If a nurse wants to use an evaluator who is not on the list, the evaluator
can be approved by the Executive Director. The Executive Director approves
forensic evaluators whose credentials and resumé evidence experience
in doing forensic evaluations and whose names may not be on the list. If that
evaluator submits credible evaluations based on objective criteria and professional
expertise, he/she is asked whether he/she can be added to the list. Psychological/
Psychiatric evaluators are approved based on licensure and no board-approved
list exists.
Comment: TNA contends that there exists "no requirement in subsection (e)
that the applicant/nurse be provided a copy of the evaluation as there is
in subsection (f)(3)."
Response: The Board agrees that no requirement exists but the Board assumes
that a copy will be provided, because the nurse/applicant paid for it. If
no copy is provided by the evaluator, the Board provides a copy to the nurse/applicant.
The Board will add the requirement to subsection (e).
Comment: TNA contends that "subsection (e) describes the evaluation as
"designed to test the psychological stability and veracity of the applicant
or licensee" and subsection (f)(1)(E) as "designed to test the psychological
stability, fitness to practice, professional character, and/or veracity of
the nurse applicant or licensee." Is the intent that the scope of the two
evaluations be different other than the fact that the one involves a criminal
history?"
Response: Generally, the purpose of the evaluations is to determine whether
an individual is safe to practice nursing. The underlying concern, e.g., mental
issue, criminal conduct, etc., for seeking the evaluation is different.
Comment: TNA contends that neither "subsection (e) or (f) addresses maintaining
the confidentiality of the evaluations. If an evaluation is done, TNA believes
that disclosure to or use by the BNE should not result in the evaluation becoming
a public record subject to disclosure under the open records act."
Response: The evaluation is subject to the open records act only if it
is admitted into evidence at a public hearing. An agreed order may include
a finding of fact that addresses the evaluation to justify the Board's action.
Comment: Individual comment states that the individual subject to evaluation
"should have the opportunity to review the information submitted to the evaluator
and provide additional information to ensure the evaluation is done fairly
and is based on the evidence. In addition, the applicant or licensee must
have the opportunity to obtain all information the BNE gets from the evaluator
at the same time that the BNE obtains it; the applicant/licensee is paying
for the examination and is entitled to the results." Another individual stated
that the evaluator should be allowed to review the complete file, other than
confidential information.
Response: The Board does not agree that an individual should have access
to the Board's work product, but the Board believes that the individual being
evaluated should be able to know what the evaluator has reviewed and to provide
additional information, and it is the Board's experience that the individual
usually does provide such information. The Board also agrees that the individual
should be given the results.
Comment: One individual states that the "board must substantiate the usefulness
of an evaluation that predicts the recidivism of a nurse or applicant."
Response: The board disagrees that it must substantiate the usefulness
of a recidivism prediction in response to its rule. The board, however, believes
it is logical to presume that such a prediction is useful in determining whether
an individual's practice would potentially place the public at risk due to
past behaviors or a fitness issue.
Comment: One individual states that the Board should not order which tests
are required to be administered, but rather should accept the opinion of the
evaluator without influence.
Response: The Board does not order testing but disagrees that it should
not request which tests are required to be administered. The Board wants the
evaluator to use objective testing that is the generally accepted tools used
by an evaluator and to address certain issues that are of concern to the Board
whether it be a sexual predator component, chemical dependency test, or polygraph,
etc. It is not the Board's experience that the tests requested influence the
evaluator's conclusion.
The amendments are adopted 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 §301.452 and §301.4535 are affected by
these amendments.
§213.33.Factors Considered for Imposition of Penalties/Sanctions and/or Fines.
(a)
The following factors shall be considered by the executive
director when determining whether to dispose of a disciplinary case by fine
or by fine and stipulation and the amount of such fine. These factors shall
be used by SOAH and the Board in determining the appropriate penalty/sanction
in disciplinary cases:
(1)
evidence of actual or potential harm to patients, clients,
or the public;
(2)
evidence of a lack of truthfulness or trustworthiness;
(3)
evidence of misrepresentation(s) of knowledge, education,
experience, credentials, or skills which would lead a member of the public,
an employer, a member of the health-care team, or a patient to rely on the
fact(s) misrepresented where such reliance could be unsafe;
(4)
evidence of practice history;
(5)
evidence of present fitness to practice;
(6)
evidence of previous violations or prior disciplinary history
by the Board or any other health care licensing agency in Texas or another
jurisdiction;
(7)
the length of time the licensee has practiced;
(8)
the actual damages, physical, economic, or otherwise, resulting
from the violation;
(9)
the deterrent effect of the penalty imposed;
(10)
attempts by the licensee to correct or stop the violation;
(11)
any mitigating or aggravating circumstances;
(12)
the extent to which system dynamics in the practice setting
contributed to the problem; and
(13)
any other matter that justice may require.
(b)
Each specific act or instance of conduct may be treated
as a separate violation.
(c)
Unless otherwise specified, fines shall be payable in full
by cashier's check or money order not later than the 45th day following the
entry of an Order.
(d)
The payment of a fine shall be in addition to the full
payment of all applicable fees and satisfaction of all other applicable requirements
of the NPA and the Board's rules.
(e)
When determining evidence of present fitness to practice,
the Board or Executive Director may request an evaluation by a psychologist
or psychiatrist, who is licensed by the Texas State Board of Examiners of
Psychologists or the Texas Medical Board, respectively. The evaluator must
be familiar with the duties appropriate to the nursing profession. The evaluation
must be conducted pursuant to professionally recognized standards and methods.
The evaluation must include the utilization of objective tests and instruments
which at a minimum are designed to test the psychological stability and veracity
of the applicant or licensee. The applicant or licensee subject to evaluation
shall sign a release allowing the evaluator to review the file compiled by
the Board staff and a release that permits the evaluator to release the evaluation
to the Board. The applicant or licensee should be provided a copy of the evaluation
upon completion by the evaluator; if not, the Board will provide the individual
a copy.
(f)
When determining evidence of present fitness to practice
by a licensee or applicant for licensure:
(1)
the Board or Executive Director may request an individual
risk assessment conducted by a Board-approved forensic psychologist or psychiatrist
who:
(A)
evaluates the criminal history of a person; and
(B)
seeks to predict:
(i)
the likelihood that the person will engage in criminal
activity that may result in the person receiving a second or subsequent reportable
adjudication or conviction; and
(ii)
the continuing danger, if any, that the person poses to
the community.
(C)
is familiar with the duties appropriate to the nursing
profession.
(D)
conducts the evaluation pursuant to professionally recognized
standards and methods; and
(E)
utilizes objective tests and instruments that, at a minimum,
are designed to test the psychological stability, fitness to practice, professional
character, and/or veracity of the nurse applicant or licensee.
(2)
The applicant or licensee subject to evaluation shall sign
a release allowing the evaluator to review the file compiled by the Board
staff and a release that permits the evaluator to release the evaluation to
the Board.
(3)
The applicant or licensee should be provided a copy of
the evaluation upon completion by the evaluator; if not, the Board will provide
the individual a copy.
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 February 22, 2007.
TRD-200700699
Katherine A. Thomas
Executive Director
Board of Nurse Examiners
Effective date: March 14, 2007
Proposal publication date: November 10, 2006
For further information, please call: (512) 305-6824
Chapter 461.
GENERAL RULINGS
22 TAC §461.16
The Texas State Board of Examiners of Psychologists adopts
the repeal of §461.16, Witness Fees, without changes to the proposal
as published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9789).
The repeal is being adopted to re-position it in a more relevant chapter.
The adopted repeal will help to ensure protection of the public.
No comments were received regarding the adoption of the repeal.
The repeal is adopted under Texas Occupations Code, Title 3,
Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700632
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.2
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.2, Definitions, without changes to the proposed text
published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9789).
The amendments are being adopted to clarify the rule and correct errors
in punctuation.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700643
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.4
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.4, Records of Official Action, without changes to
the proposed text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9790).
The amendments are being adopted to clarify the rule and for formatting
corrections.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700644
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.5
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.5, Conduct and Decorum, without changes to the proposed
text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9790).
The amendments are being adopted to correct grammar.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700645
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.6
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.6, Agreement to be in Writing, without changes to
the proposed text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9791).
The amendments are being adopted to clarify the rule and to be compatible
with SOAH rules of procedure, 1 TAC §155.39(d).
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700646
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.9
The Texas State Board of Examiners of Psychologists adopts
new §470.9, Witness Fees, without changes to the proposed text published
in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9791).
The new section is being adopted to place it with relevant administrative
procedure provisions.
The adopted new section will help to ensure protection of the public.
No comments were received regarding the adoption of the new section.
The new section is adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700647
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.15
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.15, Proposal for Decision, without changes to the
proposed text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9791).
The amendments are being adopted to comport with the SOAH rule, 1 TAC §155.59.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700648
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.16
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.16, Final Decision, without changes to the proposed
text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9792).
The amendments are being adopted to clarify the rule and to comport with
Administrative Procedure Act, Government Code, §§2001.141, 2001.142
and 2001.144.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700649
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.18
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.18, The Record, without changes to the proposed text
published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9793).
The amendments are being adopted to clarify the rule and to comport with
Administrative Procedure Act, Government Code, §2001.060.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700650
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.22
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.22, Schedule of Sanctions, without changes to the
proposed text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9794).
The amendments are being adopted to clarify the rule.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700651
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.23
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.23, Aggravating and Mitigating Circumstances, with
no changes to the proposed text published in the December 8, 2006, issue of
the
Texas Register
(31 TexReg 9795).
The amendments are being adopted to clarify the rule and make internal
provisions consistent.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700652
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §470.24
The Texas State Board of Examiners of Psychologists adopts
amendments to §470.24, Enforcement of Orders, Decisions, and Rules, without
changes to the proposed text published in the December 8, 2006, issue of the
The amendments are being adopted to clarify the rule and to add text in
accordance with the Administrative Procedure Act, Government Code, §2001.202.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700653
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §471.1
The Texas State Board of Examiners of Psychologists adopts
amendments to §471.1, Notification of Renewal, without changes to the
proposed text published in the December 8, 2006, issue of the
Texas Register
(31 TexReg 9796).
The amendments are being adopted to clarify the notice for renewal.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700654
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §471.5
The Texas State Board of Examiners of Psychologists adopts
amendments to §471.5, Updated Information Requirements, without changes
to the proposed text published in the December 8, 2006, issue of the
The amendments are being adopted to clarify the information that is needed
on the annual renewal form.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700656
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
22 TAC §471.6
The Texas State Board of Examiners of Psychologists adopts
amendments to §471.6, Renewal Penalty Waiver for Licensees on Deployment,
without changes to the proposed text published in the December 8, 2006, issue
of the
Texas Register
(31 TexReg 9797).
The amendments are being adopted to simplify and clarify the rule.
The adopted amendments will help to ensure protection of the public.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 February 20, 2007.
TRD-200700659
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: March 12, 2007
Proposal publication date: December 8, 2006
For further information, please call: (512) 305-7706
Chapter 573.
RULES OF PROFESSIONAL CONDUCT
Subchapter B. SUPERVISION OF PERSONNEL
22 TAC §573.10
The Texas Board of Veterinary Medical Examiners adopts the
amendments to §573.10, concerning Supervision of Non-Licensed Employees,
without changes to the proposed text as published in the November 3, 2006,
issue of the
Texas Register
(31 TexReg 8956).
This section authorizes a non-veterinarian approved by the Texas Animal
Health Commission and supervised by a Commission approved veterinarian to
perform brucellosis testing on cattle at livestock markets (sales barns) to
insure that the cattle are free of disease at sale. However, in some areas
of the state, cattle are shipped directly from the ranch to slaughter without
ever arriving at a market. In some larger ranches, cattle herds are often
located at great distances from each other and from markets, making it difficult
for a veterinarian to personally collect blood samples from each herd. Often
large animal veterinarians are scarce in rural areas. In order to facilitate
timely testing and still ensure that testing is done properly, the amended
section allows, in those "direct to slaughter" situations, trained persons
under the general supervision of a veterinarian to collect blood for testing
in the same way blood sampling is done at the sales barns.
Several comments were received from veterinarians. Some supported the amendment
for the reasons stated above. Others opposed the amendment because of concerns
about lay persons assuming too much of a veterinarian's traditional functions,
and that such persons would not be properly trained for their duties, and
that lay persons should receive direct rather than general supervision. Several
opined that veterinarian shortages in rural areas should be addressed by increasing
the per-head fee paid to veterinarians for testing.
The Board believes the amendment is a reasonable approach to the need for
cattle testing in rural areas. Training for the layperson is addressed by
the Animal Health Commission which must approve such persons for testing purposes.
Testing at markets by non-veterinarians under the supervision of veterinarians
is an accepted practice. In addition, the scope of the amendment is limited
to those situations where cattle are shipped directly to slaughter. For these
reasons, the Board does not make any changes in the adopted amendment.
The amendments are adopted under the authority of the Texas Occupations
Code, §801.151(a), which authorizes the Board to adopt rules necessary
to administer the Veterinary Licensing Act.
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 February 16, 2007.
TRD-200700594
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: March 8, 2007
Proposal publication date: November 3, 2006
For further information, please call: (512) 305-7555
Chapter 213.
PRACTICE AND PROCEDURE
Part 21.
TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
Chapter 470.
ADMINISTRATIVE PROCEDURE
Chapter 471.
RENEWALS
Part 24.
TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS
Chapter 575.
PRACTICE AND PROCEDURE