Part 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES
Chapter 109. OFFICE FOR DEAF AND HARD OF HEARING SERVICES
Subchapter B. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION
Division 1. DEFINITIONS AND BOARD OPERATIONS
The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (the Department), adopts, on an emergency basis, amendments to §109.243, concerning Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate.
The Commission finds that imminent peril to public health, safety, and welfare requires adoption of this rule on fewer than 30 days' notice.
The reason for this finding is that the Department has received and anticipates receiving complaints against interpreters for the deaf, who are certified by the Department, alleging inappropriate and/or criminal sexual conduct between interpreters and other individuals, some of are children. The Department does not have adequate rules in place to address revocation, suspension, or other disciplinary actions against interpreters for such alleged conduct, only for convictions. The Department's interpreter certification is one of the primary certifications being used by deaf interpreters to obtain employment with, among other employers, school districts.
Recent federal regulations from the U.S. Department of Education (specifically 34 Code of Federal Regulations §300.156, published August 2006) and state rules from the Texas Education Agency (specifically 19 TAC §89.1131(a) and (d), adopted November 2007) mandate that school districts employ only licensed or certified interpreters. Without the emergency adoption of the rule amendments, the Department is severely restricted in disciplinary actions against interpreters alleged to have engaged in inappropriate conduct. These interpreters would be allowed to retain the Department's certification and move from school district to school district or other employment where vulnerable individuals are at risk, without having the validity of the allegations explored by the Department or their certifications challenged in Department disciplinary proceedings. The amended rule will allow the Department to initiate disciplinary proceedings on the basis of these allegations and to take appropriate disciplinary action, where legally supported by facts and credible evidence.
The amendment is adopted, on an emergency basis, pursuant to the Commission's statutory rulemaking authority under Texas Human Resources Code, §81.007(h), and Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§109.243.Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate.
[
(a)
]
The Office may deny application; suspend
or revoke certification; or otherwise discipline, reprimand, or place
on probation a certificate holder for any of the following causes:
(1)
violations of federal and state laws that
are substantiated by credible evidence, whether or not there is a
complaint, indictment, or conviction, such violations including, but
not limited to, the following:
[
conviction of a felony
or any offense involving theft or controlled substances. In determining
if the criminal conviction has a direct bearing on whether the interpreter
or applicant should be entrusted to serve the public, the Office considers
the particular facts and circumstances of each case to include evidence
of those matters required by Texas Revised Civil Statutes, Articles
6252-13c and 13d. The crimes having such a direct bearing include
criminal conduct of homicide, rape, sexual abuse, indecency with a
child, injury to a child, aggravated assault, robbery, burglary, theft,
forgery, bribery, perjury, and those relating to controlled substances;
]
(A) any felony, including but not limited to homicide, rape, sexual abuse of a child, indecency with a child, injury to a child, aggravated assault, robbery, burglary, theft, forgery, bribery, and perjury;
(B) any misdemeanor involving moral turpitude that involves dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflects adversely on the certificate holder's honesty, trustworthiness, or fitness to interpret under the scope of the person's certificate; or
(C) any offense involving theft or controlled substances;
(2)
engaging in sexually inappropriate behavior
with or comments directed at a consumer, including individuals who
are part of the interpreted situation, or a person under the age of eighteen;
[
use or under the influence of drugs or intoxicating
liquors to an extent that affects his or her professional competence.
This includes: the use or under the influence of drugs or intoxicating
liquors during an interpreting assignment, whether or not controlled,
to an extent that is dangerous to the interpreter or applicant, or
any other members of the public; the use or under the influence of
drugs or intoxicating liquors during an interpreting assignment, to
the extent that such use impairs the interpreter's or applicant's
ability to perform the work of interpreting in a competent and responsible
manner;
]
(3) using or being under the influence of drugs, whether or not controlled, or intoxicating liquors to an extent that affects the interpreter's professional competence;
(4)
[
(3)
] impersonating another
person who holds an interpreter certification from the office;
(5)
[
(4)
] allowing another person
to use their interpreter certification;
(6)
[
(5)
] representing oneself
or another interpreter as having a level of certification different
from the actual level of certification awarded by the office, in excess
of the actual level of certification;
(7)
[
(6)
] using fraud, deception
, which includes, but is not limited to cheating,
or misrepresentation in an application for certification
, during the certification
examination or evaluation, or in the certification maintenance or
renewal process
;
(8)
[
(7)
] [
willfully
]
violating or aiding in the violation of the CODE OF PROFESSIONAL CONDUCT
described in §109.245 of this title (relating to Code of Professional
Conduct);
(9)
[
(8)
] being grossly incompetent
or grossly negligent in performing the duties as an interpreter; or
having demonstrated repeated and/or continuous negligence or irresponsibility
in the performance of their duties;
(10)
[
(9)
] being adjudicated
mentally incompetent by a court of competent jurisdiction;
(11)
[
(10)
] intentionally harassing,
abusing, or intimidating, either physically or verbally
, a consumer, including individuals who are part of the interpreted situation;
a board member
;
[
,
] evaluator
;
[
,
]
or any staff of the Department;
(12)
[
(11)
] intentionally divulging
or using inappropriately
any aspect of confidential information
relating to the certification evaluation including content, topic,
vocabulary, identity of individuals involved in the tests, skills,
written test questions, and any other testing materials deemed confidential;
(13)
[
(12)
] failure to meet requirements for certification maintenance;
(14)
[
(13)
] engaging in the practice
of interpreting while certification is suspended;
(15)
[
(14)
] falsification of
re-certification documents by altering original letters, certificates
issued through continuing education, or attendance verification; or
(16)
[
(15)
] violation of a statute, rule, or policy
concerning
[
of
] the Office or Department.
[(b) Authority: Human Resources Code, §81.007(h).]
This agency hereby certifies that the emergency adoption 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 January 17, 2008.
TRD-200800196
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective Date: January 17, 2008
Expiration Date: May 15, 2008
For further information, please call: (512) 424-4050