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") proposes amendments to a rule of the Texas Department of Assistive and Rehabilitative Services ("DARS"), Title 40, Part 2, 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, §109.243, Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate.
The proposed amendments to §109.243 add more substantive grounds for denying, suspending, or revoking the certification of interpreters for the deaf, including grounds relating to allegations of criminal behavior or other misconduct by interpreters certified by DARS. Complaints against certified interpreters have increased and become more serious in nature since the adoption of recent federal regulations by the U.S. Department of Education (specifically 34 Code of Federal Regulations §300.156, published August 2006) and state rules by the Texas Education Agency (specifically 19 TAC §89.1131(a) and (d), adopted November 2007), which require school districts to employ only licensed or certified interpreters for deaf students. Complaints received by DARS have included allegations of crimes against children and disabled individuals. Currently, the permanent rules of DARS relating to the certified interpreter program covers only convictions for criminal acts, which in many cases may take years to occur, if ever. These amendments will allow DARS to initiate disciplinary proceedings on allegations of rule violations and to take appropriate disciplinary action where legally supported by facts and credible evidence, to protect the health and safety of the public.
Amended §109.243 is also being proposed to replace Emergency §109.243, which was adopted by HHSC in response to HHSC's finding that imminent peril to public health, safety, and welfare required the emergency adoption of §109.243, as amended. If Emergency §109.243 is still in effect at the time of adoption of proposed amended §109.243, Emergency §109.243 will be withdrawn contemporaneously with the adoption of proposed amended §109.243.
In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year rule review of §109.243, as required by state law. DARS has determined through its review of this rule that the reason for initially adopting the rule, which was to protect the general public from misconduct and/or illegal acts of certified interpreters, continues to exist. However, the rule review identified areas where amendments were needed to strengthen the rule. These amendments are being proposed for the reasons described above in this preamble. Chapter 109 was proposed for review in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).
Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed amendment will be in effect, there will be no foreseeable fiscal implications for state or local government as a result of enforcing or administering the rule amendment.
Mr. Wheeler has determined that for each year of the first five years the proposed amendment will be in effect, the public benefit anticipated as a result of enforcing the amendment will be the assurance that certified interpreters alleged to have violated the rule will be investigated, disciplinary action taken where supported by the facts and credible evidence, and violators removed from interpreting for or around vulnerable members of the public.
Mr. Wheeler has also determined that there will be no probable economic cost to persons who are required to comply with the proposed amendment. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposed rule amendments will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed amendment will have no adverse economic effect on small businesses or micro-businesses.
Written comments on the proposed amendment and the four-year rule review which proposes readoption of the rule with amendments may be submitted within 30 days of publication of this proposal in the Texas Register to: Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756,.
The amendment is proposed pursuant to HHSC's statutory rulemaking authority under Texas Human Resources Code, Chapter 81, §81.007(h), and Texas Government Code, Chapter 531, §531.0055(e), which provide the Executive Commissioner of the Texas 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.
No other statute, article, or code is affected by this proposal.
§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 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 March 3, 2008.
TRD-200801249
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Earliest possible date of adoption: April 13, 2008
For further information, please call: (512) 424-4050