PART 11. TEXAS BOARD OF NURSING

CHAPTER 213. PRACTICE AND PROCEDURE

22 TAC §213.33

INTRODUCTION. The Texas Board of Nursing (Board) proposes amendments to §213.33, concerning Factors Considered for Imposition of Penalties/Sanctions and/or Fines. The amendments are proposed under the Occupations Code §§301.452, 301.4521, 301.453, 301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461, 301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151 and are necessary to: (i) implement House Bill (HB) 3961, enacted by the 81st Legislature, Regular Session, effective June 19, 2009, which adds new §301.4521 to the Occupations Code Chapter 301; and (ii) adopt the Disciplinary Matrix (Matrix), which is used in the resolution of eligibility and disciplinary matters before the Board, in rule.

The Board proposed amendments to §213.33 in the September 11, 2009, issue of the Texas Register (34 TexReg 6255). Based upon comments received, the Board determined that it would reconsider the amendments to §213.33 in a separate rulemaking action in lieu of adopting the amendments as proposed. The Board withdrew the proposed amendments to §213.33 in the November 6, 2009, issue of the Texas Register (34 TexReg 7812).

The Board is re-proposing amendments to §213.33 in this proposal to address physical and psychological evaluations under the Occupations Code §301.4521, to adopt the Matrix in rule, and to re-designate the subsections of §213.33 for consistency and cohesiveness within the section.

The Occupations Code §301.4521

HB 3961 adds new §301.4521 to Chapter 301, which authorizes the Board to: (i) require an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol; and (ii) request an individual to submit to a physical or psychological evaluation if the Board believes that the individual is unable to practice nursing safely for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. If the Board requires an individual to submit to an evaluation due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 requires the Board to submit its request in writing. Further, new §301.4521 requires the Board to describe its reasons for requiring the evaluation and to inform an individual that refusal to submit to the evaluation will result in an administrative hearing at the State Office of Administrative Hearings (SOAH) to determine whether probable cause for the evaluation exists. Further, at the conclusion of the hearing, the Administrative Law Judge (ALJ) will enter an order either requiring the individual to submit to the evaluation or rescinding the Board's demand for the evaluation. If an individual refuses to submit to the evaluation after the ALJ enters an order requiring the evaluation, new §301.4521 authorizes the Board to: (i) refuse to issue or renew the individual's license; (ii) suspend the individual's license; or (iii) issue an order limiting the individual's license. If the Board requests an individual to submit to an evaluation for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 also requires the Board to submit its request in writing. Under new §301.4521, the Board is required to state its reasons for the evaluation; specify the type of evaluation it is requesting; explain how it may use the evaluation; inform the individual that he or she may refuse to submit to the evaluation; and explain the procedures for submitting an evaluation in a hearing regarding the issuance or renewal of the individual's license. If an individual refuses to consent to the requested evaluation, new §301.4521 prohibits the individual from introducing an evaluation into evidence at a hearing conducted by SOAH, unless the individual meets certain, specified requirements. New §301.4521 also requires the Board to (i) establish, by rule, the qualifications for a licensed practitioner to conduct an evaluation under §301.4521 and (ii) adopt guidelines for requiring or requesting an individual to submit to an evaluation under §301.4521.

The proposed amendments to §213.33(k) and (l) implement the requirements of HB 3961 by: (i) identifying the circumstances in which an evaluation may be required or requested by the Board under new §301.4521; (ii) specifying the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521; and (iii) prescribing the required components of an evaluation under new §301.4521. Although the proposed amendments implement the requirements of HB 3961, they do not substantially alter the Board's existing policies, procedures, and requirements regarding evaluations. Rather, the proposed amendments codify the Board's existing policies, procedures, and requirements regarding evaluations. Historically, the Board has requested physical and psychological evaluations in order to evaluate an individual's fitness to practice. Further, the Board has considered the conclusions and recommendations of evaluators when determining the appropriate remedy in disciplinary cases. The Board has typically recognized and approved evaluators based upon their education, experience, and expertise in conducting evaluations. Further, the Board has typically required each evaluator to utilize objective criteria during an evaluation to address the Board's particular areas of concern and to test an individual's psychological stability and veracity. The Board has requested physical, psychological, and forensic evaluations from individuals since 1998 and has consistently utilized evaluations in disciplinary cases since that time. Although the Board's policies, procedures, and requirements regarding evaluations have been refined over time, the essential substance of such policies, procedures, and requirements has not changed. These policies, procedures, and requirements are now being formally incorporated into the proposed amendments to §213.33, pursuant to the requirements of HB 3961.

The proposed amendments to §213.33(k) are necessary to prescribe the requirements that will apply to an evaluation required by the Board under new §301.4521(b). Proposed amended §213.33(k) specifies that the Board may require an individual to submit to an evaluation if the Board has probable cause to believe that an individual is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Further, proposed amended §213.33(k) specifies (i) the credentials that a provider must possess in order to perform an evaluation under new §301.4521(b) and (ii) the requirements the evaluation must meet. Pursuant to proposed amended §213.33(k), a provider must be a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, or psychiatrist in order to conduct an evaluation required by the Board under new §301.4521(b). The proposed amendments further require the provider to possess credentials that are appropriate for the specific evaluation required by the Board. Additionally, the evaluator must be familiar with the duties appropriate to the nursing profession and the evaluation must be conducted pursuant to professionally recognized standards and methods. Proposed amended §213.33(k) also requires the evaluator to utilize objective tests and instruments during the evaluation that are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. If applicable, proposed amended §213.33(k) requires the evaluator to review an individual's prognosis and medication regime. In all cases, proposed amended §213.33(k) clarifies that the Board reserves the right to request a forensic component for any evaluation. In such cases, the evaluator must possess appropriate forensic credentials, experience, and expertise, as determined by the Board.

The proposed amendments to §213.33(l) are necessary to prescribe the requirements that will apply to an evaluation requested by the Board under new §301.4521(f). New §301.4521(f) authorizes the Board to request an evaluation for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Accordingly, the proposed amendments to §213.33(l) clarify that the Board may request an evaluation in circumstances where an individuals's prior criminal history, unprofessional conduct, or good professional character are at issue. The proposed amendments to §213.33(l) also prescribe the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521(f) and the criteria that the evaluation must meet. Under the proposed amendments, a provider must be a Board- approved forensic psychologist or forensic psychiatrist who is familiar with the duties appropriate to the nursing profession. Further, the provider must utilize objective tests and instruments that are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. Under the proposed amendments to §213.33(l), an evaluator must: (i) consider an individual's behavior or prior criminal history; and (ii) provide an opinion as to whether the individual is likely to engage in the behavior or criminal activity again and whether the individual poses any danger to the public.

The proposed amendments to §213.33(k) and (l) are necessary for several reasons. The Board is charged with protecting the health, safety, and welfare of the public from the unsafe, incompetent, unethical, or illegal conduct of licensees and individuals subject to Chapter 301. An individual's impairment creates a threat to the public's safety and welfare, regardless of whether the impairment is caused by a physical or mental condition, chemical dependency, or drug or alcohol abuse. In situations involving the impairment of an individual, the Board has determined that it has a responsibility to remove the individual from all nursing duties involving direct patient care until the individual is deemed safe to return to those duties. Further, individuals who have a substantial criminal history or who exhibit unprofessional conduct, such as misappropriation of property or falsification of documents, may also pose a serious risk to the public's safety. In these cases, the Board is particularly concerned that such conduct may be repeated in connection with the individual's practice of nursing, thereby placing vulnerable members of the public in danger and affecting the individual's ability to safely care for patients. The Board has determined that physical and psychological evaluations are useful tools in determining whether an individual is safe to practice nursing and has relied upon evaluations in the past for such purposes. However, an evaluation must be based upon reliable, verifiable, and objective information in order to be useful to the Board in making such determinations. As such, the proposed amendments to §213.33(k) and (l) are intended to ensure that an evaluation under new §301.4521 is conducted by an appropriately trained provider who specializes in the specific area relevant to the required or requested evaluation. Further, the proposed amendments to §213.33(k) and (l) require an evaluator to be familiar with the duties appropriate to the nursing profession. This proposed requirement is especially significant. In order for an evaluation to be useful to the Board, an evaluator must be able to form an opinion as to whether an individual can practice nursing safely. In order to reach such an opinion, an evaluator must be familiar with the duties that are relevant to the nursing profession. Patients under the care of a nurse are vulnerable by virtue of illness or injury and are dependent upon the nature of the nurse-patient relationship. Further, the nurse- patient relationship exists in settings other than a hospital, such as in home health, hospice care, or nursing home care. An evaluator must be familiar with the types of settings in which a nurse may work, the kinds of tasks that a nurse must be able to perform, and the skills and judgment that a nurse must utilize as part of his or her daily routine. Further, an evaluator must understand the complexities associated with providing direct patient care in any setting in order to be able to adequately assess an individual's ability to meet those responsibilities. The proposed amendments to §213.33(k) and (l) also require an evaluation to be conducted pursuant to professionally recognized standards and methods and to include the use of objective tests and instruments designed to test the psychological stability, fitness to practice, professional character, and veracity of the individual. These proposed requirements are necessary to assist the Board in determining whether an individual is likely to be able to comply with Chapter 301 and the Board's policies and rules in the future. This is a very important factor for the Board to consider, especially in cases that involve prior criminal or unprofessional conduct. Although the Board considers all factors and circumstances in each case, the Board is especially concerned with the likelihood that an individual's dangerous or unsafe behavior may be repeated in the future. To that end, the proposed requirements are designed to ensure that evaluators utilize objective and reliable instruments to determine if an individual: (i) is being honest and forthcoming about the events that have transpired, (ii) understands the significance of the events that have transpired, (iii) has plans in place to prevent the reoccurrence of the events that have transpired; (iv) has made amends for past conduct; (v) currently possesses the physical and mental stability to practice safely, and (vi) currently possesses the professional character necessary to practice safely. If an evaluator determines that an individual may practice safely, these factors also play a large role in determining whether the individual should be subject to Board monitoring and supervision. Although the Board considers the totality of factors present in each disciplinary case, the information and data obtained during an evaluation, including an evaluator's conclusions and recommendations, are invaluable in assisting the Board in determining whether an individual is safe to practice nursing, and, if so, under what circumstances.

The Disciplinary Matrix

In 2007, the Sunset Advisory Commission (Commission) evaluated the functions of the Board and made several recommendations to the 80th Legislature. In particular, the Commission recommended that the Board adopt an enforcement matrix in rule. (see Sunset Advisory Commission Report, Recommendation 8.6, http://www.sunset.state.tx.us/80threports/final80th/79.pdf). Specifically, Recommendation 8.6 required the Board to establish, in rule, a matrix to use when determining disciplinary actions for nurses who violated state law or Board rules. The Commission noted that, "[w]hile adopting an enforcement matrix will help the Board make consistent, fair disciplinary decisions, the matrix would not be used as a one-size-fits-all approach, as the Board would maintain flexibility in determining the most appropriate sanction for each violation". The Commission also noted that the Board should take into account the licensee's compliance history, the seriousness of the violation, the threat to the public's health and safety, and other mitigating factors in developing the matrix. Further, the Commission noted that the adoption of an enforcement matrix in rule would provide the public with the opportunity to comment on the development of the matrix and would provide nurses with ready access to the Board's enforcement guidelines, which would allow them to better understand the potential consequences of violations.

House Bill (HB) 2426 was enacted during the 80th Legislative Session and amended Chapter 301 to include §301.4531, which relates to Schedule of Sanctions. Section 301.4531 requires the Board, by rule, to adopt a schedule of the disciplinary sanctions that the Board may impose under Chapter 301. Further, in adopting the schedule of sanctions, §301.4531 requires the Board to ensure that the severity of the sanction is appropriate to the type of violation or conduct that is the basis for the disciplinary action. The amendments to §301.4531 appear to be closely related to the recommendations of the Commission regarding the adoption of an enforcement matrix in rule. At its July 19 - 20, 2008, Board meeting, the Board proposed the adoption of amendments to 22 Texas Administrative Code §213.33. The amendments outlined a schedule of sanctions that could be imposed for violations of Chapter 301. The adopted amendments were published in the Texas Register on October 5, 2007, and became effective on October 10, 2007. Additionally, the Board considered and approved the development of a more comprehensive "matrix" as contemplated by the Commission. From approximately May, 2007, to April, 2008, the Eligibility and Disciplinary Task Force (Task Force) worked to develop a comprehensive disciplinary matrix which could be used to analyze violations of Chapter 301 in a fair and consistent manner, while maintaining the Board's flexibility to determine the most appropriate action in each case. Following the development of the Matrix, the Task Force recommended that the Board pilot its use. The Board approved the Matrix as a pilot at its April, 2008, Board meeting, and the Matrix was published in the Texas Register on May 9, 2008 (33 TexReg 3827) for public comment.

Board Staff began piloting the use of the Matrix in eligibility and disciplinary matters in May, 2008. During the pilot period, Board Staff utilized the Matrix to analyze violations of Chapter 301 and Board rules and to determine the most appropriate sanction for those violations. The Matrix was also used to: (i) develop initial recommendations/proposed orders; (ii) evaluate cases during informal conferences; (iii) refer/provide information to members of the public (attorneys, employers, licensees) so they could better understand the potential consequences of particular violations/conduct; and (iv) make recommendations during administrative hearings at SOAH. Approximately 3,600 disciplinary actions were taken against licensees during the pilot period.

At its October 22 -23, 2009, Board meeting, the Board considered and approved amendments to the Matrix. The amendments addressed various issues that Board Staff became aware of during the pilot period and incorporated changes that were made to Chapter 301 during the 81st Legislative Session. The amendments also included changes that were recommended to the Board by the Eligibility and Disciplinary Advisory Committee (Committee). The Committee convened on September 17, 2009, and considered several proposed amendments to the Matrix. Following a lengthy discussion, the Committee voted to unanimously approve the proposed amendments to the Matrix and recommend their adoption to the Board. Further, the Committee proposed three additional amendments to the Matrix and voted to recommend their adoption to the Board. The amendments that were approved and adopted by the Board at its October, 2009, meeting: (i) clarify the circumstances under which aggravating and/or mitigating circumstances may be considered by the Board; (ii) clarify the Board's authority under the Occupations Code §301.4521; (iii) clarify the applicability of the Matrix to eligibility matters; (iv) revise the amounts of fines for consistency with 22 Texas Administrative Code §213.32 (relating to Corrective Action Proceedings and Schedule of Administrative Fines); (v) clarify the applicability of a corrective action under the Occupations Code §301.651 - §301.657; (vi) provide consistency between the sanctions for a violation of the Occupations Code §301.452(b)(3) and (b)(4); (vii) clarify the available sanctions for a violation of the Occupations Code §301.452(b)(1), (9), and (10); (viii) incorporate references to the Occupations Code §301.4551 throughout the Matrix; (ix) remove the word "or" from the first sanction level for a first and second tier offense for a violation of the Occupations Code §301.452(b)(1); (x) remove the phrase "nurse is not currently practicing as a nurse" from the list of mitigating circumstances for a violation of Occupations Code §301.452(b)(9); and (xi) remove the phrase "harm to patient was not a result of care" from the list of mitigating circumstances for a violation of the Occupations Code §301.452(b)(10). In addition to approving the amendments and adopting the Matrix, the Board also approved the proposal of the Matrix in rule.

Proposed amended §213.33(a) requires the Matrix to be utilized in all disciplinary and eligibility matters before the Board. This proposed requirement is designed to ensure consistency, efficiency, and predictability in Board decisions regarding eligibility and disciplinary matters. Proposed amended §213.33(b) sets forth the adopted Matrix. The adopted Matrix contains the amendments that were approved by the Board at its October, 2009, meeting. Those amendments have been specified previously in this proposal. The other portions of the Matrix remain unchanged from the version of the Matrix that was utilized during the pilot period.

The Matrix, as set forth in proposed amended §213.33(b), is organized by offense tiers and sanction levels. The offenses listed in the Matrix mirror the offenses specified in the Occupations Code §301.452(b)(1) - (13). Section 301.452(b)(1) - (13) prescribes the specific violations of Chapter 301 for which a person is subject to disciplinary action or denial of licensure by the Board. Each offense in the Matrix is divided into tiers. The first offense tier typically includes less serious violations that involve a low risk of harm to the public. The second, third, and fourth offense tiers typically include more serious violations that involve a greater risk of harm to the public. For each offense tier specified in the Matrix, there are two corresponding sanction levels. The first sanction level includes Board actions that are less severe in nature while the second sanction level includes Board actions that are more severe in nature. Each offense tier in the Matrix includes a description of events that might fall within that offense tier. Further, each sanction level contains a description of the disciplinary actions that could be imposed for the corresponding offense tier. These clarifications are necessary to provide notice to licensees and members of the public of the potential consequences of violations of Chapter 301. The Matrix also includes a non-exhaustive list of aggravating and mitigating factors that may be considered by the Board when determining the appropriate offense tier and sanction level for a specific offense. These clarifications are designed to assist licensees and other members of the public in understanding the circumstances that could increase or decrease the severity of a particular offense. Finally, the Matrix reiterates the differences between a corrective action and a disciplinary action. The Matrix does not address violations for which a non-disciplinary corrective action may be imposed by the Board under the Occupations Code Subchapter N and 22 Texas Administrative Code §213.32. Rather, the Matrix addresses only those violations for which a disciplinary action under the Occupations Code Subchapter J may be imposed by the Board. This clarification is necessary to further define the scope of the Matrix.

Remaining amendments

The Occupations Code Chapters 53 and 301 require the Board to consider certain factors when determining the appropriate action in a disciplinary matter. The Board has determined that these factors should be considered in conjunction with the Matrix. As such, the proposed amendments to §213.33(c) specify at least 17 factors that must be considered in determining the appropriate offense tier and sanction level of the Matrix for a particular offense. The proposed amendments to §213.33(c) are necessary to ensure that the unique factors in each disciplinary matter before the Board are fully considered before a final determination is made regarding the imposition of a disciplinary action. This enhanced review should promote fair decisions in all disciplinary matters before the Board and should result in better protection of the public, as the presence of aggravating factors should result in more severe disciplinary actions, while the presence of mitigating factors should result in less severe disciplinary actions.

The proposed amendments to §213.22(e) are necessary to specify the probationary stipulations that may accompany a specific disciplinary action. Before a disciplinary action may be imposed in any particular matter, the factors specified in proposed amended §213.33 (c) must be evaluated and the appropriate offense tier and sanction level of the Matrix must be determined. Once an offense tier and sanction level are determined, a corresponding disciplinary action may be imposed. Proposed amended §213.33(e) lists the probationary stipulations that may accompany the imposed disciplinary action. The proposed amendments to §213.33(e) are necessary to provide notice to licensees and other members of the public of the potential consequences of violations of Chapter 301, including which probationary stipulations are likely to accompany a specific disciplinary action.

Further, the proposed amendments to §213.22(e) clarify the Board's existing policy regarding random drug testing through urinalysis. If an individual is placed under Board monitoring for chemical dependency or the misuse or abuse of alcohol or drugs, the Board typically requires the individual to submit to random drug screening for a specified period of time as part of the probationary stipulations of the disciplinary action. The Board requires an individual to be tested for approximately fourteen prohibited substances, including alcohol. The Board has required its random drug screening to be verified through urinalysis since at least 1989. Over the years, the Board has found urinalysis to be a reliable method for screening for prohibited substances, including alcohol. Further, the Board contracts with a third party vendor to conduct its drug screening, and the Board's vendor utilizes urinalysis to verify the results of the screens. The proposed amendments to §213.33(e) formally codify the Board's existing policy regarding random drug testing by clarifying that all random drug testing must be verified through urinalysis.

Finally, the proposed amendments to §213.33(g) are necessary to clarify that the Board's adopted polices regarding fraud, theft, and deception; lying and falsification; sexual misconduct; criminal conduct, and substance abuse, misuse, substance dependency, or substance use disorder also apply in eligibility and disciplinary matters. Further, the proposed amendments to §213.33(h) are necessary to clarify that, to the extent that a conflict exists between the Matrix and the Board's adopted eligibility and disciplinary policies specified in proposed amended §213.33(g), the Matrix controls.

Section-by-Section Overview. The following is a section-by-section overview of the proposal. The proposed amended title of §213.33 reads: "Factors Considered for Imposition of Penalties/Sanctions".

Proposed amended §213.33(a) states that the Board and SOAH shall utilize the Matrix set forth in §213.33(b) in all disciplinary and eligibility matters. Proposed amended §213.33(b) sets forth the Matrix.

Proposed amended §213.33(c) provides that the Board and SOAH shall consider certain factors in conjunction with the Matrix when determining the appropriate penalty/sanction in disciplinary and eligibility matters. The factors shall be analyzed in determining the tier and sanction level of the Matrix for a particular violation or multiple violations of the Nursing Practice Act (NPA) and Board rules. The factors include: (i) evidence of actual or potential harm to patients, clients, or the public; (ii) evidence of a lack of truthfulness of trustworthiness; (iii) 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) represented where such reliance could be unsafe; (iv) evidence of practice history; (v) evidence of present fitness to practice; (vi) whether the person has been subject to previous disciplinary action by the Board or any other health care licensing agency in Texas or another jurisdiction and, if so, the history of compliance with those actions; (vii) the length of time the person has practiced; (viii) the actual damages, physical, economic, or otherwise, resulting from the violation; (ix) the deterrent effect of the penalty imposed; (x) attempts by the licenses to correct or stop the violation; (xi) any mitigating or aggravating circumstances, including those specified in the Matrix; (xii) the extent to which system dynamics in the practice setting contributed to the problem; (xiii) whether the person is being disciplined for multiple violations of the NPA or its derivative rules and orders; (xiv) the seriousness of the violation; (xv) the threat to public safety; (xvi) evidence of good professional character as set forth and required by §213.27 (relating to Good Professional Character); and (xvii) any other matter that justice may require.

Proposed amended §213.33(d) provides that each specific act or instance of conduct may be treated as a separate violation.

Proposed amended §213.33(e) states that, the Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions, with or without probationary stipulations: (i) denial of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit; (ii) approval of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit, with reasonable probationary stipulations; (iii) probation of an order denying a license application, license renewal, license reinstatement, or temporary permit, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in §213.33(k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (iv) issuance of a warning, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in §213.33(k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of at least one year under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (v) issuance of a reprimand, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in subsections (k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of at least two years under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (vi) limitation or restriction of the person's license, including limits on specific nursing activities or periodic Board review; (vii) suspension of the person's license, which may be enforced and active for a specific period and/or probated with reasonable probationary stipulations, including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in subsections (k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of not less than two years under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (viii) remit payment of the administrative penalty, fine, or assessment of hearing costs; (ix) acceptance of a voluntary surrender of a nurse's license(s); (x) revocation of the person's license; (xi) require participation in remedial education course or courses prescribed by the Board which are designed to address those competency deficiencies identified by the Board; (xii) assessment of a fine as set forth in §213.32 (relating to Corrective Action Proceedings and Schedule of Administrative Fines); (xiii) assessment of costs as authorized by the Occupations Code §301.461 and the Government Code §2001.177; or (xiv) require successful completion of a Board approved peer assistance program.

Proposed amended §213.33(f) provides that every disciplinary order issued by the Board shall require the person subject to the order to participate in a program of education or counseling prescribed by the Board, which, at a minimum, will include a review course in nursing jurisprudence and ethics.

Proposed amended §213.33(g) states that the following disciplinary and eligibility sanction policies and guidelines shall be used by the Board and SOAH when determining the appropriate penalty/sanction in disciplinary and eligibility matters: (i) Disciplinary Sanctions for Fraud, Theft, and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (ii) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (iii) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (iv) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; and (v) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

Proposed amended §213.33(h) states that, to the extent that a conflict exists between the Matrix and a disciplinary and eligibility sanction policy described in proposed amended §213.33(g), the Matrix controls. Proposed amended §213.33(i) provides that, 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. Proposed amended §213.33(j) states that 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.

Proposed amended §213.33(k) provides that, if the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, the Board may require an evaluation by a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, or psychiatrist, with credentials appropriate for the specific evaluation requested, as determined by the Board. In all cases, the evaluator must possess credentials, expertise, and experience appropriate for conducting the requested evaluation, as determined by the Board. Further, the Board reserves the right to request a forensic component for any evaluation. In such cases, the evaluator must possess forensic credentials, expertise, and experience appropriate for conducting the requested forensic evaluation, as determined by the Board. 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, as determined and requested by the Board, which are designed to test the psychological stability, fitness to practice, professional character, and veracity of the person subject to evaluation. If applicable, the evaluation must include information regarding the person's prognosis and medication regime. The person 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 person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.

Proposed amended §213.33(l) states that, when determining evidence of present fitness to practice because of known or reported unprofessional conduct, lack of good professional character, or prior criminal history, the Board may request an evaluation conducted by a Board-approved forensic psychologist or forensic psychiatrist who: (i) evaluates the behavior in question or the prior criminal history of the person; (ii) seeks to predict the likelihood that the person subject to evaluation will engage in the behavior in question or criminal activity again, which may result in the person committing a second or subsequent reportable violation or receiving a second or subsequent reportable adjudication or conviction; and the continuing danger, if any, that the person poses to the community; (iii) is familiar with the duties appropriate to the nursing profession; (iv) conducts the evaluation pursuant to professionally recognized standards and methods; and (v) utilizes objective tests and instruments, as determined and requested by the Board, that are designed to test the psychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation. Further, the person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by Board staff and a release that permits the evaluator to release the evaluation to the Board. The person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy. Further, the provisions of the Occupations Code §301.4521 apply to an evaluation requested under 213.33(l).

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

PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, there will be public benefits, and there will be potential costs for individuals required to comply with the proposal.

Anticipated Public Benefits. The anticipated public benefits will be the adoption of requirements that (i) implement the provisions of the Occupations Code §301.4521 and (ii) promote consistency, efficiency, and predictability in Board decisions regarding eligibility and disciplinary matters.

The Board is charged with protecting the health, safety, and welfare of the public from the unsafe, incompetent, unethical, or illegal conduct of licensees and individuals subject to Chapter 301. When an individual has exhibited impaired behavior, either due to chemical dependency or the abuse of alcohol or drugs, or due to a physical or mental condition, the Board has a responsibility to remove the individual from all nursing duties involving direct patient care until the individual is deemed safe to return to those duties. Further, when an individual has exhibited unprofessional character, including criminal conduct, the Board has a responsibility to ensure that the individual does not pose a risk to the public's safety. The Board is particularly concerned about such conduct as it relates to the individual's nursing practice, as such behaviors may place vulnerable members of the public in danger and could affect the individual's ability to safely care for patients. The proposed amendments to §213.33(k) and (l), which implement the requirements of §301.4521, provide the Board with an additional tool in determining an individual's fitness to practice. The proposed amendments prescribe the specific circumstances in which the Board will require or request an individual to submit to a physical or psychological evaluation. Further, the proposed amendments require all evaluations to be conducted by an appropriately trained provider and to be based upon objective, verifiable information. Often, the Board will review an evaluator's recommendations before imposing specific probationary stipulations in a disciplinary matter. In order to ensure that the most appropriate probationary stipulations are imposed, the Board must be able to determine that an evaluator's recommendations are based upon objective, verifiable, information. The proposed amendments also require an evaluator to be familiar with the duties of the nursing profession. This proposed requirement is especially important because an evaluator must be able to assess the settings in which an individual may work, the specific tasks that an individual must perform, and the skills and judgment that the individual must utilize as part of his or her daily routine. Further, the evaluator must be able to assess whether the individual can safely perform his or her nursing responsibilities in a specific setting. The proposed requirements also assist the Board in determining whether an individual will be able to comply with the NPA and the Board's policies and rules in the future. This is a significant factor for consideration, especially as it relates to the likelihood that dangerous or unsafe behavior may be repeated in the future.

Further, the proposed amendments promote consistency, efficiency, and predictability in Board decisions regarding eligibility and disciplinary matters. The proposed amendments incorporate the use of the Matrix in all eligibility and disciplinary matters before the Board. The Matrix clearly sets forth the potential consequences of violations of Chapter 301 and Board rules and policies. In doing so, the Board is providing notice to licensees and other members of the public of the potential consequences of violations of Chapter 301 and Board policies and rules. Adequate notice of such consequences promotes fair and efficient regulation. Further, the Matrix describes events that may qualify as offenses under the Occupations Code §301.452(b)(1) - (13). This clarification may assist licensees and other members of the public in understanding how certain events may be viewed by the Board in conjunction with §301.452(b)(1) - (13). The Matrix also provides guidance to licensees and other members of the public regarding the effect of aggravating and mitigating factors in eligibility and disciplinary matters. This clarification is especially important because it communicates the Board's expectations regarding the severity of certain reported conduct. Establishing such expectations results in fair and efficient regulation. Finally, the proposed amendments ensure consistency among Board policies, procedures, and requirements regarding random drug screening. By clarifying the Board's existing policy that all random drug screening must be verified through urinalysis, the Board is providing appropriate notice to all regulated individuals of the Board's existing policies and expectations in this regard, which also results in fair and consistent regulation.

Potential Costs for Individuals Required to Comply with the Proposal.

The proposal authorizes the Board to: (i) require an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol; and (ii) request an individual to submit to a physical or psychological evaluation if the Board believes that the individual is unable to practice nursing safely for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. The proposal also (i) identifies the circumstances in which an evaluation may be required or requested by the Board under new §301.4521, (ii) specifies the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521, and (iii) prescribes the required components of an evaluation under new §301.4521. Further, the proposal requires that the Matrix be utilized in all eligibility and disciplinary matters before the Board and prescribes the probationary stipulations that may be imposed as part of a disciplinary action. Not every individual regulated under Chapter 301 will be subject to the proposal. Only those individuals who (i) are involved in an eligibility or disciplinary matter before the Board or (ii) are requested or required to submit to a physical or psychological evaluation under new §301.4521 will be affected by the proposal. There will be associated costs of compliance with the proposal for such individuals. The probable costs associated with the proposed amendments result from compliance with proposed amended §213.33(a), (b), (e), (f), (i), (j), (k), and (l).

Proposed amended §213.33(a) requires that the Matrix be utilized in all eligibility and disciplinary matters before the Board. Proposed amended §213.33(b) sets forth the Matrix. Proposed amended §213.33(e) prescribes the probationary stipulations that may accompany a disciplinary action. Proposed amended §213.33(f) provides that every disciplinary order issued by the Board shall require the individual subject to the order to participate in a program of education or counseling prescribed by the Board, which, shall include a review course in nursing jurisprudence and ethics. Proposed amended §213.33(i) requires all fines to be paid not later than the 45th day following the entry of an order, unless otherwise specified. Proposed amended §213.33(j) provides that 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 Board rules. Finally, proposed amended §213.33 (g) clarifies that all random drug screening must be verified through urinalysis.

If an individual becomes involved in an eligibility or disciplinary matter before the Board, the total probable costs of compliance with the proposed amendments to §213.33(a), (b), (e), (f), (i), and (j) will vary substantially among individuals depending upon several factors, including: (i) the nature of the reported offense; (ii) the severity of the reported offense; (iii) whether any aggravating or mitigating factors contributed to the reported offense; (iv) the resulting disciplinary action; (v) the specific probationary stipulations imposed in conjunction with the disciplinary action; and (vi) whether an individual chooses to retain legal representation. The amount of the total probable compliance costs will primarily depend upon the severity of the reported offense. For example, if the reported conduct of an individual in an eligibility or disciplinary matter results in a less severe disciplinary action because mitigating factors are present, the associated probationary stipulations are likely to be less severe and fewer in number, which should decrease the associated costs of compliance. In such a case, an individual may only be required to pay a $250 fine and complete a course in jurisprudence and ethics. The total costs of compliance in such a case should not exceed $600. However, if an individual's reported conduct is more severe in nature and involves practice deficiencies, for example, the associated probationary stipulations are likely to be more severe and numerous in nature, and could include several remedial education courses, practice restrictions, and Board monitoring. Several types of remedial education courses may be imposed in a particular matter. Some of these courses may be completed online, while others require classroom instruction. The Board does not require an individual to complete a specific remedial education course offered by a specific provider. Instead, the Board publishes a list of approved providers that offer remedial education courses. This list is located on the Board's website, at: http://www.bon.state.tx.us/disciplinaryaction/stipscourses.html. Each individual is free to chose the most economic means of completing a remedial education course, provided that the course meets the requirements of the individual's probationary stipulations.

Further, if an individual's reported conduct is related to chemical dependency or abuse of drugs or alcohol, the probationary stipulations associated with the disciplinary action are likely to include random drug testing conducted through urinalysis and extensive monitoring stipulations. The total probable costs associated with random drug testing will vary from individual to individual based upon the (i) length of time that an individual must submit to random drug screening and (ii) the number of screens that an individual must submit. An individual will typically be required to submit to random drug screening for a period of 1 - 3 years. During this time, an individual will be required to test once a week for the first three month period. An individual will be required to test twice a month for the next three month period. An individual will be required to test once a month for the next six month period. An individual will be required to test once a quarter for the remainder of the testing period. The Board estimates that each test will cost $46.00. Based upon this estimate, the Board anticipates that a one year testing period will cost approximately $1,152; a two year testing period will cost approximately $1,336; and a three year testing period will cost approximately $1,520. Although individuals are not typically required to test beyond three years, there may be instances where a longer testing period is required. In those situations, the Board estimates that it will cost an individual an additional $184 per year to complete the required random screens. Further, if an individual is required to re-submit a screen for any reason, each screen is anticipated to cost an additional $46.

A fine may or may not be imposed as part of a disciplinary action, depending upon the nature of the reported conduct. If a fine is imposed, the amount will vary among individuals depending upon: (i) the nature of the reported conduct; (ii) whether multiple violations of Chapter 301 are at issue; (iii) whether the individual has been subject to disciplinary action previously; and (iv) the specific sanction level and offense tier that is related to the reported conduct. As provided by 22 Texas Administrative Code §213.32, the Board may impose a fine in the amount of $250 - $5,000 per occurrence, depending upon the specific factors involved. If a fine is imposed and is less than $750, the fine must be paid within 45 days of the entry of the disciplinary action. Typically, an individual will be given an additional 45 days to pay a fine for each $750 increment. For example, an individual would be given 90 days to pay a fine greater than $750, but less than $1,500. An individual would be given 135 days to pay a fine greater than $1,500, but less than $2,250, and so on. The payment of the fine is also in addition to any other fees that must be paid. The Occupations Code §301.501 authorizes the Board to impose an administrative penalty on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301. Further, the Occupations Code §301.502 provides that the amount of the administrative penalty shall not exceed $5,000 for each violation, and that each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

An individual is not required to be represented by an attorney in eligibility or disciplinary matters before the Board. However, an individual may choose to be represented by an attorney. For those individuals who choose to utilize the services of an attorney, the associated costs will vary substantially among individuals depending upon several factors, including: (i) the complexity of the individual's case; (ii) the amount of time incurred by the attorney; (iii) the rate charged by the attorney; (iv) whether the attorney must travel to Austin, Texas, for any proceedings; and (v) whether the matter is resolved informally or must proceed to SOAH. Each individual has the information necessary to estimate his or her own compliance costs with proposed amended §213.33(a), (b), (e), (f), (i), and (j). Further, any other costs to comply with the proposal result from the enactment of the Occupations Code Chapters 53 and 301 and are not a result of the adoption, enforcement, or administration of the proposal.

Proposed amended §213.33(k) and (l) identify the circumstances in which an evaluation may be required or requested by the Board under new §301.4521. Proposed amended §213.33(k) and (l) also prescribe the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521 and specify the criteria that an evaluation must meet under new §301.4521. Specifically, the proposed amendments to §213.33(k) and (l) require an evaluation under new §301.4521 to be conducted by a Board approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, or psychiatrist with credentials appropriate for the specific evaluation requested or required by the Board. Further, the proposed amendments to §213.33(k) and (l) require the evaluator to be familiar with the duties appropriate to the nursing profession. Additionally, the proposed amendments to §213.33(k) and (l) require an evaluation to be conducted pursuant to professionally recognized standards and methods and to include the utilization of objective tests and instruments which are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. If an individual is requested to submit to an evaluation under new §301.4521, the total probable costs to comply with the proposed amendments will vary substantially among individuals, primarily based upon the cost assessed by the particular evaluator performing the requested evaluation. The Board generally estimates that an evaluation under new §301.4521 may cost between $850 - $2,000. However, the Board anticipates that the probable costs of an evaluation under new §301.4521 will vary substantially from provider to provider, based upon the following factors: (i) the type and nature of the evaluation; (ii) the type of provider that is qualified to perform the evaluation; (iii) the availability of a qualified provider to conduct the evaluation; (iv) the amount and type of objective tests utilized by an evaluator; (iv) the geographic location of the individual; (v) the geographic location of the evaluator; (vi) whether an evaluator performs evaluations on a frequent basis; (vii) the familiarity of an evaluator with the requirements of new §301.4521, the proposed amendments, and Board policies and procedures; (viii) the complexity of the issues in the case; (ix) the history of the individual; (x) the amount of time it will take for the evaluator to conduct the evaluation, including the administration of objective tests; and (xi) the amount of time it will take the evaluator to prepare his or her report. The proposed amendments to §213.33(k) and (l) establish the credentials that a provider must possess in order to perform an evaluation under new §301.4521. The proposed amendments also prescribe the criteria that an evaluation under new §301.4521 must meet. However, the Board is not requiring an individual to obtain an evaluation from a particular evaluator. Although the Board maintains a list of pre-approved evaluators who may conduct an evaluation, an individual is not obligated to obtain an evaluation from one of the listed providers. An individual may choose to obtain an evaluation from any provider, so long as the provider meets the proposed requirements of §213.33(k) and (l) and new §301.4521. As such, each individual is free to choose the most economical way to obtain an evaluation under new §301.4521 and the proposed amendments. Each individual also has the information necessary to estimate his or her own compliance costs. Further, new §301.4521(i) states that an individual shall pay the costs of an evaluation conducted under new §301.4521. Any other costs to comply with the proposal result from the enactment of the Occupations Code Chapter 301 and are not a result of the adoption, enforcement, or administration of the proposal.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES.

As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposal because no individual, Board regulated entity, or other entity required to comply with the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or (2). The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and (2) must be met in order for an entity to qualify as a micro business or small business. The only entities subject to the proposal are individuals regulated under Chapter 301. Because such individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual regulated under Chapter 301 qualifies as a micro business or small business under the Government Code §2006.001(1) or (2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.

TAKINGS IMPACT ASSESSMENT.

The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code 2007.043.

REQUEST FOR PUBLIC COMMENT.

To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on January 3, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

STATUTORY AUTHORITY.

The amendments are proposed under the Occupations Code §§301.452, 301.4521, 301.453, 301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461, 301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151. Section 301.452(a) defines intemperate use to include practicing nursing or being on duty or on call while under the influence of alcohol or drugs. Section 301.452(b) provides that a person is subject to denial of a license or to disciplinary action under Subchapter J for: (i) a violation of Chapter 301, a rule or regulation not inconsistent with Chapter 301, or an order issued under Chapter 301; (ii) fraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing; (iii) a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony or for a misdemeanor involving moral turpitude; (iv) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude; (v) use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered; (vi) impersonating or acting as a proxy for another person in the licensing examination required under §301.253 or §301.255; (vii) directly or indirectly aiding or abetting an unlicensed person in connection with the unauthorized practice of nursing; (viii) revocation, suspension, or denial of, or any other action relating to, the person's license or privilege to practice nursing in another jurisdiction; (ix) intemperate use of alcohol or drugs that the Board determines endangers or could endanger a patient; (x) unprofessional or dishonorable conduct that, in the Board's opinion, is likely to deceive, defraud, or injure a patient or the public; (xi) adjudication of mental incompetency; (xii) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or (xiii) failure to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the Board's opinion, exposes a patient or other person unnecessarily to risk of harm. Section 301.452(c) provides that the Board may refuse to admit a person to a licensing examination for a ground described under §301.452(b).

Section 301.4521(a) defines the term applicant as a petitioner for a declaratory order of eligibility for a license or an applicant for an initial license or renewal of a license and the term evaluation as a physical or psychological evaluation conducted to determine a person's fitness to practice nursing. Section 301.4521(b) provides that the Board may require a nurse or applicant to submit to an evaluation only if the Board has probable cause to believe that the nurse or applicant is unable to practice nursing with reasonable skill and safety to patients because of: (i) physical impairment; (ii) mental impairment; or (iii) chemical dependency or abuse of drugs or alcohol. Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b) must be in writing and state: (i) the reasons probable cause exists to require the evaluation; and (ii) that refusal by the nurse or applicant to submit to the evaluation will result in an administrative hearing to be held to make a final determination of whether probable cause for the evaluation exists. Section 301.4521(d) states that, if the nurse or applicant refuses to submit to the evaluation, the Board shall schedule a hearing on the issue of probable cause to be conducted by SOAH. The nurse or applicant must be notified of the hearing by personal service or certified mail. The hearing is limited to the issue of whether the Board had probable cause to require an evaluation. The nurse or applicant may present testimony and other evidence at the hearing to show why the nurse or applicant should not be required to submit to the evaluation. The Board has the burden of proving that probable cause exists. At the conclusion of the hearing, the hearing officer shall enter an order requiring the nurse or applicant to submit to the evaluation or an order rescinding the Board's demand for an evaluation. The order may not be vacated or modified under the Government Code §2001.058. Section 301.4521(e) states that, if a nurse or applicant refuses to submit to an evaluation after an order requiring the evaluation is entered under §301.4521(d), the Board may: (i) refuse to issue or renew a license; (ii) suspend a license; or (iii) issue an order limiting the license. Section 301.452(f) provides that the Board may request a nurse or applicant to consent to an evaluation by a practitioner approved by the Board for a reason other than a reason listed in §301.4521(b). A request for an evaluation under §301.4521(f) must be in writing and state: (i) the reasons for the request; (ii) the type of evaluation requested; (iii) how the Board may use the evaluation; (iv) that the nurse or applicant may refuse to submit to an evaluation; and (v) the procedures for submitting an evaluation as evidence in any hearing regarding the issuance or renewal of the nurse's or applicant's license. Section 301.4521(g) states that, if a nurse or applicant refuses to consent to an evaluation under §301.4521(f), the nurse or applicant may not introduce an evaluation into evidence at a hearing to determine the nurse's or applicant's right to be issued or retain a nursing license unless the nurse or applicant: (i) not later than the 30th day before the date of the hearing, notifies the Board that an evaluation will be introduced into evidence at the hearing; (ii) provides the Board the results of that evaluation; (iii) informs the Board of any other evaluations by any other practitioners; and (iv) consents to an evaluation by a practitioner that meets Board standards established under §301.4521(h). Section 301.4521(h) provides that the Board shall establish by rule the qualifications for a licensed practitioner to conduct an evaluation under §301.4521. The Board shall maintain a list of qualified practitioners. The Board may solicit qualified practitioners located throughout the state to be on the list. Section 301.4521(i) states that a nurse or applicant shall pay the costs of an evaluation conducted under §301.4521. Section 301.4521(j) provides that the results of an evaluation under §301.4521 are: (i) confidential and not subject to disclosure under the Government Code Chapter 552; (ii) not subject to disclosure by discovery, subpoena, or other means of legal compulsion for release to anyone, except that the results may be: (A) introduced as evidence in a proceeding before the Board or a hearing conducted by SOAH under Chapter 301; or (B) included in the findings of fact and conclusions of law in a final Board order. Section 301.4521(k) provides that, if the Board determines there is insufficient evidence to bring action against a person based on the results of any evaluation under §301.4521, the evaluation must be expunged from the Board's records. Section 301.4521(l) requires the Board to adopt guidelines for requiring or requesting a nurse or applicant to submit to an evaluation under §301.4521. Section 301.4521(m) states that the authority granted to the Board under §301.4521 is in addition to the Board's authority to make licensing decisions under Chapter 301.

Section 301.453(a) provides that, if the Board determines that a person has committed an act listed in §301.452(b), the Board shall enter an order imposing one or more of the following: (i) denial of the person's application for a license, license renewal, or temporary permit; (ii) issuance of a written warning; (iii) administration of a public reprimand; (iv) limitation or restriction of the person's license, including limiting to or excluding from the person's practice one or more specified activities of nursing or stipulating periodic Board review; (v) suspension of the person's license for a period not to exceed five years; (vi) revocation of the person's license; or (vii) assessment of a fine. Section 301.453(b) provides that, in addition to or instead of an action under §301.453(a), the Board, by order, may require the person to: (i) submit to care, counseling, or treatment by a health provider designated by the Board as a condition for the issuance or renewal of a license; (ii) participate in a program of education or counseling prescribed by the Board; (iii) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board; or (iv) perform public service the Board considers appropriate. Section 301.453(c) provides that the Board may probate any penalty imposed on a nurse and may accept the voluntary surrender of a license. The Board may not reinstate a surrendered license unless it determines that the person is competent to resume practice. Section 301.453(d) states that if the Board suspends, revokes, or accepts surrender of a license, the Board may impose conditions for reinstatement that the person must satisfy before the Board may issue an unrestricted license.

Section 301.4531(a) states that the Board by rule shall adopt a schedule of the disciplinary sanctions that the Board may impose under Chapter 301. In adopting the schedule of sanctions, the Board shall ensure that the severity of the sanction imposed is appropriate to the type of violation or conduct that is the basis for disciplinary action. Section 301.4531(b) states, in determining the appropriate disciplinary action, including the amount of any administrative penalty to assess, the Board shall consider: (i) whether the person is being disciplined for multiple violations of either Chapter 301 or a rule or order adopted under Chapter 301 or has previously been the subject of disciplinary action by the Board and has previously complied with Board rules and Chapter 301; (ii) the seriousness of the violation; (iii) the threat to public safety; and (iv) any mitigating factors. Section 301.4531(c) provides that, in the case of a person described by §301.4531(b)(1)(A), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a single violation; and in the case of a person described by §301.4531(b)(1)(B), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a person who has not previously been the subject of disciplinary action by the Board.

Section 301.454(d) provides that SOAH shall use the schedule of sanctions adopted by the Board for any sanction imposed as the result of a hearing conducted by SOAH.

Section 301.455(a) provides that the license of a nurse shall be temporarily suspended or restricted on a determination by a majority of the Board or a three-member committee of Board members designated by the Board that, from the evidence or information presented, the continued practice of the nurse would constitute a continuing and imminent threat to the public welfare. Section 301.455(b) provides that a license may be temporarily suspended or restricted under §301.455 without notice or hearing on the complaint if: (i) institution of proceedings for a hearing before SOAH is initiated simultaneously with the temporary suspension or determination to restrict; and (ii) a hearing is held as soon as possible under Chapter 301 and the Government Code Chapter 2001.

Section 301.4551 provides that the Board shall temporarily suspend the license of a nurse as provided by §301.455 if the nurse is under a Board order prohibiting the use of alcohol or a drug or requiring the nurse to participate in a peer assistance program, and the nurse tests positive for alcohol or a prohibited drug; refuses to comply with a Board order to submit to a drug or alcohol test; or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the Board for noncompliance.

Section 301.461 states that the Board may assess a person who is found to have violated Chapter 301 the administrative costs of conducting a hearing to determine the violation.

Section 301.462 provides that the Board may revoke a nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the Board and executes a sworn statement that the nurse does not desire to be licensed.

Section 301.467(a) provides that on application, the Board may reinstate a license to practice nursing to a person whose license has been revoked, suspended, or surrendered. Section 301.467(b) provides that an application to reinstate a revoked license (i) may not be made before the first anniversary of the date of the revocation and (ii) must be made in the manner and form the Board requires. Section 301.467(c) provides that, if the Board denies an application for reinstatement, it may set a reasonable waiting period before the applicant may reapply for reinstatement.

Section 301.468(a) provides that the Board may determine that an order denying a license application or suspending a license be probated. A person subject to a probation order shall conform to each condition the Board sets as the terms of probation, including a condition: (i) limiting the practice of the person to, or excluding, one or more specified activities of professional nursing or vocational nursing; or (ii) requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the Board.

Section 301.501 provides that the Board may impose an administrative penalty on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301.

Section 301.502(a) states that the amount of the administrative penalty may not exceed $5,000 for each violation. Further, each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. Section 301.502(b) states that the amount of the penalty shall be based on: (i) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (ii) the economic harm to property or the environment caused by the violation; (iii) the history of previous violations; (iv) the amount necessary to deter a future violation; (v) efforts made to correct the violation; and (vi) any other matter that justice may require.

Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of (iv) professional conduct for license holders Chapter 301; and determine whether an act constitutes the practice of professional nursing or vocational nursing.

CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal:

§213.33 §§301.452, 301.4521, 301.453, 301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461, 301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151.

§213.33.Factors Considered for Imposition of Penalties/Sanctions [and/or Fines].

(a) The Board and the State Office of Administrative Hearings (SOAH) shall utilize the Disciplinary Matrix set forth in subsection (b) of this section in all disciplinary and eligibility matters.

[(a) The following factors shall be considered by the executive director when determining whether to dispose of a disciplinary case by fine or by fine and stipulation and the amount of such fine. These factors shall be used by the State Office of Administrative Hearings (SOAH) when recommending a sanction and the Board in determining the appropriate penalty/sanction in disciplinary cases:]

[(1) 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) The Disciplinary Matrix is as follows:

Figure: 22 TAC §213.33(b) (.pdf)

[(b) Each specific act or instance of conduct may be treated as a separate violation.]

(c) The Board and SOAH shall consider the following factors in conjunction with the Disciplinary Matrix when determining the appropriate penalty/sanction in disciplinary and eligibility matters. The following factors shall be analyzed in determining the tier and sanction level of the Disciplinary Matrix for a particular violation or multiple violations of the Nursing Practice Act (NPA) and Board rules:

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

(7) the length of time the person 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, including those specified in the Disciplinary Matrix;

(12) the extent to which system dynamics in the practice setting contributed to the problem;

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

(14) the seriousness of the violation;

(15) the threat to public safety;

(16) evidence of good professional character as set forth and required by §213.27 of this chapter (relating to Good Professional Character); and

(17) any other matter that justice may require.

[(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) Each specific act or instance of conduct may be treated as a separate violation.

[(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) The Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions, with or without probationary stipulations:

(1) Denial of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit;

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

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

(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;

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

(D) limit specific nursing activities and/or periodic Board review;

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

(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or

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

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

(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;

(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;

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

(D) limit specific nursing activities and/or periodic Board review;

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

(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or

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

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

(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;

(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;

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

(D) limit specific nursing activities and/or periodic Board review;

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

(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or

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

(5) Limitation or restriction of the person's license, including limits on specific nursing activities or periodic Board review;

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

(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;

(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;

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

(D) limit specific nursing activities and/or periodic Board review;

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

(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or

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

(7) Remit payment of the administrative penalty, fine, or assessment of hearing costs;

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

(9) Revocation of the person's license;

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

(11) Assessment of a fine as set forth in §213.32 of this chapter (relating to Corrective Action Proceedings and Schedule of Administrative Fines);

(12) Assessment of costs as authorized by the Occupations Code §301.461 and the Government Code §2001.177; or

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

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

[(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.]

(g) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Board and SOAH when determining the appropriate penalty/sanction in disciplinary and eligibility matters:

(1) Disciplinary Sanctions for Fraud, Theft, and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

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

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

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

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

[(C) the seriousness of the violation;]

[(D) the threat to public safety; and]

[(E) any mitigating factors.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[(H) Revocation of the person's license;]

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

[(J) Assessment of a fine;]

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

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

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

(h) To the extent that a conflict exists between the Disciplinary Matrix and a disciplinary and eligibility sanction policy described in subsection (g) of this section, the Disciplinary Matrix controls.

[(h) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), when recommending a sanction; and the Board in determining the appropriate penalty/sanction in disciplinary and eligibility matters:]

[(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]

[(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]

[(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]

[(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]

[(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.]

(i) 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.

(j) 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.

(k) If the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, the Board may require an evaluation by a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, or psychiatrist, with credentials appropriate for the specific evaluation requested, as determined by the Board. In all cases, the evaluator must possess credentials, expertise, and experience appropriate for conducting the requested evaluation, as determined by the Board. The Board reserves the right to request a forensic component for any evaluation. In such cases, the evaluator must possess forensic credentials, expertise, and experience appropriate for conducting the requested forensic evaluation, as determined by the Board. 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, as determined and requested by the Board, which are designed to test the psychological stability, fitness to practice, professional character, and veracity of the person subject to evaluation. If applicable, the evaluation must include information regarding the person's prognosis and medication regime. The person 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 person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.

(l) When determining evidence of present fitness to practice because of known or reported unprofessional conduct, lack of good professional character, or prior criminal history:

(1) The Board may request an evaluation conducted by a Board-approved forensic psychologist or forensic psychiatrist who:

(A) evaluates the behavior in question or the prior criminal history of the person;

(B) seeks to predict:

(i) the likelihood that the person subject to evaluation will engage in the behavior in question or criminal activity again, which may result in the person committing a second or subsequent reportable violation or 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, as determined and requested by the Board, that are designed to test the psychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation.

(2) The person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by Board staff and a release that permits the evaluator to release the evaluation to the Board.

(3) The person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.

(4) The provisions of the Occupations Code §301.4521 apply to an evaluation requested under this subsection.

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 November 23, 2009.

TRD-200905410

Jena R. Abel

Assistant General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 3, 2010

For further information, please call: (512) 305-6822

CHAPTER 577. GENERAL ADMINISTRATIVE DUTIES

The Texas Board of Veterinary Medical Examiners (Board) proposes amendments to §577.2, concerning Meetings, and §577.12, concerning Directory of Licensees. The proposed amendments result from the Board's rule review of Chapter 577, conducted in accordance with Texas Government Code, §2001.039.

Elsewhere in this issue of the Texas Register, the Board contemporaneously proposes the rule review of Chapter 577.

The Board proposes the following changes to 22 TAC Chapter 577 that would clarify the rules regarding general administrative duties of the Board, including but not limited to meetings and the directory of licensees.

Language would be revised in §577.2 to conform the rule to the current practice of the Board and other state laws and rules regarding meetings conducted by the Board, including an agenda being posted, Roberts' Rules of Order governing the meetings, meetings being open to the public, consequences of disruptive behavior, the procedure for how meetings will be conducted with regards to members of the public and journalists. In addition, the proposed amendment addresses the procedure for the Board to follow with regards to executive sessions.

Language would be revised in §577.12 to show the Office of the Attorney General as correct agency promulgating the guidelines and rules on directories of licensees.

Dewey E. Helmcamp III, executive director, has determined that for each year of the first five years the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amendments.

Mr. Helmcamp III has also determined that for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of the proposed revisions would be ensuring that the general public is aware of the requirements and procedures for how meetings are conducted and the appropriate laws and rules governing meetings of the Board, as well as the correct agency that promulgates the guidelines and rules regarding directories of licensees. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

The Texas Board of Veterinary Medical Examiners invites comments on the proposal from any member of the public. A written statement should be mailed or delivered to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Ste. 3-810, Austin, Texas 78701-3942, by facsimile (FAX) to (512) 305-7574, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.

SUBCHAPTER A. BOARD MEMBERS AND MEETINGS--DUTIES

22 TAC §577.2

The amendment is proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter.

Texas Occupations Code, Chapter 801, is affected by this proposal.

§577.2.Meetings.

(a) The president shall preside at meetings of the Board. In his absence, the vice-president shall preside. In the absence of both the Board president and vice-president, the secretary shall preside.

(b) The Board shall hold a minimum of two regular meetings each year for the purpose of conducting Board business. Other meetings may be held on the call of the President or upon petition to the President of two or more Board members. The Board may hold meetings by telephone conference call or video conference call provided that the requirements of the Government Code, §551.125 and/or §551.127, are met.

(c) An agenda for each board meeting shall be posted in accordance with law and copies shall be sent to the board members.

(d) Board and committee meetings shall be conducted pursuant to the provisions of Robert's Rules of Order Newly Revised unless the board by rule adopts a different procedure.

(e) Meetings of the board are open to the public unless such meetings are conducted in executive session pursuant to state law.

(f) In order that board meetings may be conducted safely, efficiently, and with decorum, attendees may not engage in disruptive activity that interferes with board proceedings.

(g) Members of the public shall not address or question board members during meetings unless recognized by the board's presiding officer pursuant to a published agenda item.

(h) Journalists have the same right of access to board meetings conducted in open session as other members of the public and are subject to the same requirements.

(i) The board's presiding officer may exclude from a meeting any person who, after being duly warned, persists in disruptive activity that interferes with board proceedings.

(j) [(c)] Five members of the Board shall constitute a quorum and all members shall have a vote on all matters except where a Board member may be recused from voting for good cause. Decisions must be made by affirmative vote of five members.

(k) [(d)] Recording of meetings.

(1) A person may record all or part of the proceedings of a public Board meeting means of a tape recorder, video camera, or other means of audio or visual reproduction.

(2) In order to minimize disruption of the normal order of Board business, the executive director or Board president may direct any individual wishing to record or videotape the meeting as to equipment location, placement, and the manner in which the recording is conducted.

(l) Executive Session.

(1) The board may meet in executive session pursuant to law.

(2) An executive session of the board shall not be held unless a quorum of the board has first been convened in open meeting. If during such open meeting, a motion is passed by the board to hold an executive session, the presiding officer shall publicly announce that an executive session will be held.

(3) The presiding officer of the board shall announce the date and time at the beginning and end of the executive session.

(4) A certified agenda of the executive session shall be prepared.

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 November 20, 2009.

TRD-200905384

Loris Jones

Executive Assistant

Texas Board of Veterinary Medical Examiners

Earliest possible date of adoption: January 3, 2010

For further information, please call: (512) 305-7563

22 TAC §577.12

The amendment is proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter.

Texas Occupations Code, Chapter 801, is affected by this proposal.

§577.12.Directory of Licensees.

Upon request the Board will furnish a complete or partial listing of currently licensed veterinarians in printed or electronic format. Costs for the directory will vary depending on the information requested and will be in accordance with the Office of the Attorney General 1 TAC §§70.1 - 70.11 (relating to Cost of Copies of Public Information) [General Services Commission guidelines and rules].

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 November 20, 2009.

TRD-200905385

Loris Jones

Executive Assistant

Texas Board of Veterinary Medical Examiners

Earliest possible date of adoption: January 3, 2010

For further information, please call: (512) 305-7563