PART 8. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
CHAPTER 153. RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT
The Texas Appraiser Licensing and Certification Board (TALCB) adopts amendments to §153.5, Fees, without changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6251), which will not be republished. The amendments create a fee of $30 for prospective applicants for a license or certification who request an evaluation of their criminal history pursuant to House Bill 963 (81st Legislature), which created a process by which applicants for occupational licenses may seek a determination regarding their criminal history prior to filing an application for licensure. The amendments also increase licensing fees by $50/year, as follows: the fee to apply for or renew a (two-year) general certification will increase from $260 to $360, the fee to apply for or renew a (two-year) residential certification will increase from $210 to $310, the fee to apply for or renew a (two-year) license (including provisional licenses) will increase from $185 to $285, and the fee to apply for or renew a (one-year) appraiser trainee approval will increase from $105 to $155.
The reasoned justification for the amendments is that the agency will raise sufficient revenue to fund the items granted under Senate Bill 1, 81st Legislature, Regular Session, 2009.
The Board received 20 substantially similar comments during the notice and comment period regarding adoption of the amendments. These commenters, including the Foundation Appraisers Coalition of Texas (FACT) and some of its members, wrote in opposition to the fee increase, noting that fees were increased in 2007 to fund additional enforcement staff, requesting more time to allow the additional staff to have an impact on the complaint backlog, and expressing concern that the increase is unduly burdensome to appraisers in light of the percentage increase and current economic climate.
The Board respectfully disagrees that these are reasons not to adopt the increased fees. The Board operates under the oversight of the federal Appraisal Subcommittee (ASC), which requires that complaint cases be resolved within 12 months absent special documented circumstances. Continued failure to comply with ASC requirements can result in decertification of the TALCB, which would render Texas appraisers unable to perform appraisals for federally-related transactions (the vast majority of real estate transactions). For the last several years, the TALCB has experienced increasing complaint numbers, resulting in a significant backlog and an inability to close all cases within 12 months. Additional staff resulting from 2008-2009 appropriations have increased the Board's ability to resolve complaints, but current staffing levels have proven insufficient to keep pace with a 60% increase in complaints since FY 2007 and the needs of state and federal law enforcement agencies that frequently call on TALCB staff to assist in criminal actions involving mortgage fraud, as required by the 2007 Legislature in House Bill 716. Furthermore, while the increase is notable when expressed as a percentage of current licensing fees, Texas's appraiser licensing fees after the increase will remain comparable to the fees of many other states. At the October 16, 2009 meeting of the TALCB, FACT withdrew its opposition to the amendments.
The amendments are adopted under the Texas Occupations Code, §1103.156, Fees.
The statute affected by this adoption is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 21, 2009.
TRD-200904808
Devon V. Bijansky
General Counsel
Texas Appraiser Licensing and Certification Board
Effective date: November 10, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) adopts amendments to §153.9, Applications. The rule is adopted with changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6252) and will be republished. The amendments reflect revised application fees, consistent with amendments to 22 TAC §153.5 adopted elsewhere in this issue, clarify the requirements regarding education evaluations, and adopt by reference 17 new and revised application forms. The changes to the forms primarily reflect formatting changes; however, the forms also expand and clarify the criminal background questions and harmonize, when possible, the instructions and certification sections at the end of the forms. A multi-purpose application form was divided into three separate applications: Application for Appraiser License, TALCB Form AL-0; Application for Certification - Certified Residential Appraiser, TALCB Form CRA-0; and Application for Certification - Certified General Appraiser, TALCB Form CGA-0. The Request for Inactive Status (For Expired Certification of License Within One Year of Expiration Date), TALCB Form RISE-0, was also created for expired licensees and certificate holders, based on the inactive status form for currently licensed or certified appraisers. The form previously called "Supplement to Application for Certification or License by Reciprocity" was renamed "Application for Certification or License by Reciprocity" to reflect that it is a stand-alone form. Separate ACE extension request forms for provisional licensees and for other license types were combined into a single form.
Two of the forms have been revised since the rule was proposed. The revised forms are form AER-0, ACE Extension Request, and RISE-0, Request for Inaction Status (For Expired Certification of License Within One Year of Expiration Date). The revisions update the fees as adopted in this issue in 22 TAC §153.5, Fees. The changes to the forms as adopted that were not in the proposed rule do not change the nature or scope so much that they could be deemed a different rule or different forms. The rule and forms as adopted do not affect individuals other than those contemplated by the rule and forms as proposed. Because the fees are separately adopted, the rule and forms as adopted do not impose more onerous requirements than the proposed versions and do not materially alter the issues raised in the proposed rule or forms. Changes in the adopted forms reflect non-substantive variations from the proposal to comport with the fee changes adopted elsewhere in this issue.
The reasoned justification for these amendments is greater clarity and consistency in TALCB's application and licensing processes.
No comments were received regarding the amendments as proposed.
The amendments are adopted under the Texas Occupations Code, §1103.151, Rules Relating to Certificates and Licenses.
The statute affected by this adoption is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the amendments.
§153.9.Applications.
(a) A person desiring to be certified or licensed as an appraiser, approved as an appraiser trainee, or registered as a temporary non-resident appraiser shall file an application using forms prescribed by the Board. The Board may decline to accept for filing an application that is materially incomplete or that is not accompanied by the appropriate fee. Except as provided by the Act, the Board may not grant a certification, license or approval of trainee status to an applicant unless the applicant:
(1) pays the required fees;
(2) satisfies any experience and education requirements established by the Act or by these sections;
(3) successfully completes any qualifying examination prescribed by the board;
(4) provides all supporting documentation or information requested by the board in connection with the application;
(5) satisfies all unresolved enforcement matters and requirements with the board; and
(6) meets any additional or superseding requirements established by the Appraisal Qualifications Board.
(b) Prior to submitting an application, an applicant must submit a completed education evaluation request form along with the appropriate fee. If the Board determines that the applicant has met current education requirements for the applicable license or certification, it shall notify the applicant that his or her education has been approved. Any such approval shall then remain valid for one year from the date the Board received the education evaluation request. If the Board determines that the applicant has not completed all required education, the applicant has until one year from the date the Board received the request to meet all education requirements and submit an application for licensure or the education evaluation request will expire. If the education requirements change while the education evaluation request is pending, any evaluation issued by the Board after the new requirements take effect will be based on then-current requirements. If the education requirements change after the Board has notified the applicant that his or her education satisfies the Board's requirements but before the applicant submits an application, the applicant must meet any additional education requirements before the application will be processed.
(c) The Texas Appraiser Licensing and Certification Board adopts by reference the following forms published by and available from the Board, P.O. Box 12188, Austin, Texas 78711-2188, www.talcb.state.tx.us:
(1) Application for Appraiser License, TALCB Form AL-0;
(2) Application for Certification - Certified Residential Appraiser, TALCB Form CRA-0;
(3) Application for Certification - Certified General Appraiser, TALCB Form CGA-0;
(4) Application for Certification or License by Reciprocity, TALCB Form CLR-0;
(5) Application for Approval as an Appraiser Trainee, TALCB Form AAT-0;
(6) Application for Provisional Appraiser License, TALCB Form PAL-0;
(7) Affidavit Declining Sponsorship, TALCB Form ADS-0;
(8) Application for Temporary Non-Resident Appraiser Registration, TALCB Form TNAR-0;
(9) Request for Extension of Temporary Non-Resident Appraiser Registration, TALCB Form NRE-0;
(10) Request for Inactive Status (For Currently Certified or Licensed Appraisers), TALCB Form RIS-0;
(11) Request for Inactive Status (For Expired Certification of License Within One Year of Expiration Date), TALCB Form RISE-0;
(12) Request for Active Status, TALCB Form RAS-0;
(13) ACE Extension Request, TALCB Form AER-0;
(14) Change of Address, TALCB Form COA-0;
(15) Addition or Termination of Appraiser Trainee Sponsorship, TALCB Form ATS-0;
(16) Appraiser Experience Affidavit, TALCB Form AEA-0;
(17) Appraisal Experience Explanation, TALCB Form AEE-0.
(d) An application may be considered void and subject to no further evaluation or processing if an applicant fails to provide information or documentation within 60 days after the Board makes written request for the information or documentation.
(e) A certification, license, or appraiser trainee approval is valid for the term for which it is issued by the Board unless suspended or revoked for cause and unless revoked, may be renewed in accordance with the requirements of §153.17 of this title (relating to Renewal of Certification, License or Trainee Approval).
(f) The Board may deny certification, licensing, approval as an appraiser trainee, or registration for non-resident temporary practice to an applicant who fails to satisfy the board as to the applicant's honesty, trustworthiness, and integrity.
(g) The Board may deny certification, licensure, approval as an appraiser trainee, or registration for non-resident temporary practice to an applicant who submits incomplete, false, or misleading information on the application or supporting documentation.
(h) An application shall be considered void and subject to no further evaluation or processing if the applicant fails to provide acceptable documentation that all requirements for licensure, certification, or approval as an appraiser trainee have been met within one year of the date the application was received by the Board.
(i) When an application is denied by the Board, no subsequent application will be accepted within one year of the application denial.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 21, 2009.
TRD-200904809
Devon V. Bijansky
General Counsel
Texas Appraiser Licensing and Certification Board
Effective date: November 10, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) adopts amendments to §153.19, Licensing and Certification for Persons with Criminal Histories, without changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6254), which will not be republished. The amendments serve two primary purposes: (1) clarify that the TALCB's licensing requirements for persons with criminal histories comply with Chapter 53 of the Texas Occupations Code and (2) establish rules to implement the House Bill 963 requirement that the agency issue a criminal history evaluation letter to prospective applicants for licensure or certification.
First, the amendments more closely track the language of Chapter 53 regarding grounds for denial of or action against a license or certification. The amendments clarify that the agency must consider the factors in subsection (d) in evaluating the qualification for licensure of every applicant with a criminal history and that automatic revocation only applies in cases in which a licensee is imprisoned.
Second, the amendments add subsection (g), which outlines the process by which a person may request and receive a criminal history evaluation letter. New subsection (g) provides that the same standards for processing license applications apply to the criminal history evaluation letter process.
The reasoned justification for the amendments is greater clarity and consistency in TALCB's application and licensing processes.
No comments were received regarding the amendments as proposed.
The amendments are adopted under the Texas Occupations Code, §1103.151, Rules Relating to Certificates and Licenses.
The statute affected by this adoption is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 23, 2009.
TRD-200904832
Devon V. Bijansky
General Counsel
Texas Appraiser Licensing and Certification Board
Effective date: November 12, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) adopts amendments to §153.24, Processing a Complaint, without changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6255), which will not be republished. The amendments enable the Board and the commissioner to designate a staff member to sign off on dismissals of enforcement complaints.
The reasoned justification for these amendments is greater efficiency in TALCB's enforcement processes.
No comments were received regarding the amendments as proposed.
The amendments are adopted under the Texas Appraiser Licensing and Certification Act, Subchapter D, Board Powers and Duties (Texas Occupations Code, Chapter 1103), which provides the board with authority to adopt rules under §1103.151, Rules Relating to Certificates and Licenses and §1103.154, Rules Relating to Professional Conduct.
The statute affected by this adoption is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 23, 2009.
TRD-200904833
Devon V. Bijansky
General Counsel
Texas Appraiser Licensing and Certification Board
Effective date: November 12, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3900
CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES
The Texas Funeral Service Commission (commission) adopts an amendment to §203.6, concerning Provisional Licensees, with changes to the proposed text as published in the August 14, 2009, issue of the Texas Register (34 TexReg 5465).
The adopted amendment adds new subsection (o) to §203.6. The new subsection provides that the commission may issue under certain circumstances a provisional license to practice embalming or funeral directing to a person who was attending a school or college of mortuary science that was accredited at the time of the person's enrollment even though the school or college of mortuary science may have lost its accreditation subsequent to the person's enrollment. Before issuing a provisional license to such a person, the commission will require that the person acknowledge that he or she understands that even though he or she may be allowed to enter the appropriate provisional program, the person will not be eligible for a funeral director's or embalmer's license unless the school or college of mortuary sciences regains its accreditation prior to the expiration of the maximum 24 month period described in another subsection or unless the student transfers to and graduates from an accredited school or college of mortuary science.
The circumstances leading up to the adoption of this new subsection involved the fact that a college of mortuary sciences in the State of Texas was threatened with the loss of accreditation. Section 651.253(a)(3), Texas Occupations Code specifically states that for a person to be eligible to receive a funeral director's license or an embalmer's license the person must have graduated from an accredited school or college of mortuary science. Therefore, it appeared to the commission that, pursuant to current law, if the college lost its accreditation, a person who graduated after accreditation was lost and before accreditation was regained would not be eligible to receive a funeral director's or an embalmer's license from the State of Texas based on graduation from that particular college of mortuary science. On the other hand, the commission concluded that the provisions of §651.302, Texas Occupations Code relating to provisional licensure were sufficiently flexible to allow the commission to continue to issue provisional licenses to persons who had enrolled in the college of mortuary science during the time it was accredited under the circumstances and with the restrictions stated in new §203.6(o). The college of mortuary science in question did in fact lose its accreditation on September 2, 2009.
The commission received one set of comments on the proposed amendment from a college of mortuary sciences in the State of Texas (college). The comments were not received during the prescribed comment period, but, even so, the commission wishes to respond to the comments.
Comment: Will the proposed rule allow a college student to obtain a regular license even if the college is not accredited at the time the student graduates?
Response: As circulated, proposed §203.6(o) will not allow a person to obtain a regular license based on graduation from the college during the time the college is not accredited. The commission determined that in order to provide as much relief as possible to students affected by the loss of accreditation, it would proceed to adopt the rule to benefit students with respect to provisional licensure as published for comment with one non-substantive exception (see below). However, the commission did instruct its staff to review the situation to see whether further relief could be provided to the students of the college through another rulemaking.
Comment: Would a college student who is issued a provisional license by operation of [the] proposed rule be able to obtain a regular license if he/she then transfers to and graduates from an accredited school, even if the college does not regain its accreditation during the twenty-four (24) month period of their provisional license? In other words, does the commission intend to make an applicant's license contingent on the college's ability to obtain reaccredidation?
Response: While it was not the intent of the commission in the circulated draft of proposed §203.6(o) to make a person's licensure contingent on the college's ability to regain accreditation, the commission added language at final adoption of the rule to make it clear that a person will be eligible to receive a "regular" embalmer's of funeral director's license if the person transfers to and graduated from an accredited college of school of mortuary science.
Comment: Will the proposed rule benefit currently enrolled students if the college's appeal is denied before the rule takes effect?
Response: The commission will not apply the rule in such a way as to penalize students who wish to apply for a provisional license and who were enrolled at the college prior to the date it lost its accreditation.
The amendment is adopted under Texas Occupations Code, §651.152. The commission interprets §651.152 as authorizing it to adopt rules as necessary to administer Chapter 651.
§203.6.Provisional Licensees.
(a) Participants in the provisional licensure program may serve as provisional licensees only in funeral establishments or commercial embalming establishments licensed by the commission, and all work must be performed under the direct and personal supervision of a duly licensed funeral director or embalmer, depending on the provisional license. The provisional funeral director program may not be served in a commercial embalming establishment.
(b) Provisional licensees must work in a funeral establishment or commercial embalming establishment a minimum of 17 hours per week or 73 hours per month, or as otherwise permitted by the commission, under actual working conditions directly related to funeral directing and/or embalming.
(c) The provisional licensure period is a minimum of 12 and a maximum of 24 consecutive months, beginning on the date of the first case for which the licensee receives credit from with the commission. The provisional licensure programs for funeral director and embalmer may be served simultaneously.
(d) Provisional licenses issued after the effective date of this amendment expire on the last day of the month twelve months from their issue date. No fees shall be refunded to provisional licensees who fail to complete the program.
(e) Of the 60 cases required for each provisional licensure program, at least 10 must be complete cases and performed and reported during the last three months of the program. A complete funeral directing case consists of all major actions from the time of first call through interment or other disposition of the body; a complete embalming requires the provisional embalmer to handle all major actions included in §203.16 of this title (relating to Requirements Relating to Embalming) performed on a particular body. Cases performed in mortuary college may count toward the required cases if the college certifies to the commission that the cases were performed.
(f) Provisional licensees shall retain copies of all training reports with supporting documentation for all case credit claimed for 2 years from the date of the training report.
(g) A provisional embalmer shall assist in the embalming of six autopsied remains during the course of the provisional embalmer program. Autopsied cases completed while in an accredited mortuary college may count toward the six required autopsy cases if the college certifies to the commission that the cases were performed.
(h) Provisional licensees must file with the commission a training/case report for each month of the provisional license program by the 10th day of the next month as outlined in Texas Occupations Code, §651.304. Each report must consist of the actual training/case report only. All supporting documentation will be kept by the provisional licensee's sponsor, not the commission. Training/case report submission post marked after the 10th day of the month will not be accepted. The licensee will not be given credit for those training/case reports and those months will not count toward the 12 required months. An additional month will be added to the provisional program for every month the training/case report is late. In any month in which the provisional licensee does not perform a case, the provisional licensee must file a "notwithstanding" report with the commission, and that month will not count toward the 12 required months. Additionally, if a licensee fails to file a report for a month that is counted as a "notwithstanding" and additional month will be added to the provisional program for every month the licensee files a "notwithstanding". If a provisional licensee files "notwithstanding" reports for two consecutive months, the licensee is required to restart the provisional licensee program. Similarly, provisional licensees who fail to file a case report within 90 days after receiving the provisional license shall submit a new provisional license application and pay a new provisional license fee.
(i) It is the responsibility of the sponsor of the provisional, the funeral director in charge of the establishment, and the provisional licensee to schedule case work sufficient for reporting in the provisional program. Penalties for failure to file case reports in a timely manner may lie against the sponsor of the provisional licensee. The commission may start a provisional licensure program over if the provisional licensee fails on two occasions to timely file a case report.
(j) Each training/case report shall be certified by the licensee under whom the provisional licensee performed the work. The supervising licensee and the provisional licensee both are subject to disciplinary action if the information submitted is not true and accurate.
(k) Examination Requirements
(1) Applicants for licensure as a funeral director from the certificate program must sit for the Texas State Board Examination administered by the International Conference of Funeral Service Examining Boards, Inc. (International Conference).
(2) Applicants for licensure who hold associate of applied science degrees are required to sit, as applicable, for either or both of the National Board Examinations in Funeral Directing and Embalming administered by the International Conference.
(3) All applicants for licensure shall sit for the State Mortuary Law Examination administered by the commission.
(4) A passing score is 75% for each examination described in paragraphs (1) - (3) of this subsection. Passing scores are not determined by averaging scores on two or more examinations.
(l) If a provisional licensee leaves the employment of a funeral director or embalmer, the funeral director or embalmer must file an affidavit as described in Texas Occupations Code, §651.304(d) within fifteen (15) days of employment termination.
(m) A student enrolled in an accredited mortuary college must have the college forward a letter of enrollment prior to entering the provisional program.
(n) Upon the completion of the provisional license program, as defined as the provisional licensee meeting all the requirements for regular licensure, the sponsor of the provisional licensee shall notify in writing of the same by submitting the number of cases performed while the licensee was under the sponsorship of said sponsor. The commission shall cross check the information provided with the information held by the commission to ensure each provisional licensee has met all requirements. All information submitted is subject to inspection. Once confirmed the commission shall issue to the provisional licensee a written sponsor affidavit to be completed by the sponsor. In addition the commission shall issue a written letter outlining the fees required for regular licensure. The sponsor shall execute and provide to the commission the written affidavit attesting to the proficiency of the provisional licensee in those areas observed.
(o) While, pursuant to §651.253, Texas Occupations Code, a person is not eligible for a funeral director's or embalmer's license from the commission unless the person shall have graduated from an accredited school or college of mortuary science, the commission may, pursuant to §651.302, Texas Occupations Code, issue a provisional license to practice funeral directing or embalming to a person who is enrolled in a school or college of mortuary science that has lost its accreditation if the school or college or mortuary science was accredited at the time the student enrolled. The commission will not issue such a provisional license to practice funeral directing or embalming unless:
(1) the person signs an acknowledgement that the person understands that the person is not eligible for a funeral director's or embalmer's license unless the school or college of mortuary science regains its accreditation during the maximum 24 consecutive months provided by subsection (c) of this section; or
(2) the student transfers to an accredited school or college of mortuary science.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 20, 2009.
TRD-200904776
O. C. "Chet" Robbins
Executive Director
Texas Funeral Service Commission
Effective date: November 9, 2009
Proposal publication date: August 14, 2009
For further information, please call: (512) 936-2466
CHAPTER 211. GENERAL PROVISIONS
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §211.7, concerning Executive Director. The amendments are adopted without changes to the proposed text as published in the September 4, 2009, issue of the Texas Register (34 TexReg 6075) and will not be republished.
REASONED JUSTIFICATION. The amendments to §211.7 are adopted under the Occupations Code §§301.453(a), 301.4531, 301.501, 301.502, 301.651 - 301.657, and 301.151 and are necessary for consistency with adopted §213.32 of this title (relating to Corrective Action Proceedings and Schedule of Administrative Fines). The Board is simultaneously adopting amendments and new paragraphs to §213.32 of this title, which are necessary to: (i) implement Senate Bill (SB) 1415, enacted by the 81st Legislature, Regular Session, effective September 1, 2009; which adds new Subchapter N to the Occupations Code Chapter 301; (ii) revise and clarify the amount of administrative fines that may be imposed upon an individual in a disciplinary action; and (iii) clarify that the Executive Director of the Board is authorized to dispose of certain violations of Chapter 301 and Board policy and rule without the ratification of the Board. These adopted amendments and new paragraphs are also published in this issue of the Texas Register.
Specifically, the adopted amendments to §211.7(f) are necessary for consistency with the provisions of adopted §213.32(7). Under adopted §213.32(7), the Executive Director is authorized to dispose of the specified violations in adopted §213.32(2) and adopted §213.32(5) through a fine and/or remedial education, without the ratification of the Board. Further, adopted §213.32(2) addresses violations that may be resolved through a corrective action under the Occupations Code Subchapter N. The former provisions of §211.7(f) did not address corrective actions. Prior to the enactment of SB 1415, a corrective action was not an available mechanism through which a violation of Chapter 301 or Board policy or rule could be resolved. As such, the provisions of former §211.7(f) only applied to disciplinary actions. The adopted amendments to §211.7(f) correct this inconsistency by clarifying that the Executive Director may accept orders issued under both adopted §213.32(2), relating to corrective actions, and §213.32(5), relating to disciplinary actions. Further, adopted §211.7(f) makes clear that the Executive Director may accept such orders without Board ratification, which is consistent with the adopted provisions of §213.32(7). Finally, adopted §211.7(f) re-emphasizes that the Executive Director must report summaries of dispositions to the Board at its regular meetings, which is also consistent with the provisions of adopted §213.32(7).
HOW THE SECTIONS WILL FUNCTION. Adopted §211.7(f)(1) provides that the Executive Director of the Board is authorized to accept orders issued under §213.32(2) and §213.32(5) on behalf of the Board, and that ratification of the Board is not necessary. Further, adopted §211.7(f)(1) provides that the Executive Director is required to report summaries of dispositions to the Board at its regular meetings.
SUMMARY OF COMMENTS. The Board did not receive any comments on the proposal.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §§301.453(a), 301.4531, 301.501, 301.502, 301.651 - 301.657, and 301.151. The Occupations Code §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: (1) denial of the person's application for a license, license renewal, or temporary permit; (2) issuance of a written warning; (3) administration of a public reprimand; (4) 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; (5) suspension of the person's license for a period not to exceed five years; (6) revocation of the person's license; or (7) assessment of a fine. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §301.651 provides that "corrective action" means a fine or remedial education imposed under §301.652. The Occupations Code §301.652(a) states that the Board may impose a corrective action on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301. The corrective action: (i) may be a fine, remedial education, or any combination of a fine or remedial education; (ii) is not a disciplinary action under Subchapter J; and (iii) is subject to disclosure only to the extent a complaint is subject to disclosure under §301.466. The Occupations Code §301.652(b) authorizes the Board to adopt guidelines for the types of violations for which a corrective action may be imposed. The Occupations Code §301.653 states that, if the Executive Director determines that a person has committed a violation for which a corrective action may be imposed under the guidelines adopted under §301.652(b), the Executive Director may give written notice of the determination and recommendation for corrective action to the person subject to the corrective action. The notice may be given by certified mail. The notice must: (i) include a brief summary of the alleged violation; (ii) state the recommended corrective action; and (iii) inform the person of the person's options in responding to the notice. The Occupations Code §301.654 states that, not later than the 20th day after the date the person receives the notice under §301.653, the person may accept in writing the Executive Director's determination and recommended corrective action or reject the Executive Director's determination and recommended corrective action. The Occupations Code §301.655(a) states that, if the person accepts the Executive Director's determination and satisfies the recommended corrective action, the case is closed. The Occupations Code §301.655(b) states that, if the person does not accept the Executive Director's determination and recommended corrective action as originally proposed or as modified by the Board or fails to respond in a timely manner to the Executive Director's notice as provided by §301.654, the Executive Director shall terminate proceedings under Subchapter N and dispose of the matter as a complaint under Subchapter J. The Occupations Code §301.656 states that the Executive Director shall report periodically to the Board on the corrective actions imposed under Subchapter N, including: (i) the number of corrective actions imposed; (ii) the types of violations for which corrective actions were imposed; and (iii) whether affected nurses accepted the corrective actions. The Occupations Code §301.657(a) states that, except to the extent provided by §301.657, a person's acceptance of a corrective action under Subchapter N does not constitute an admission of a violation but does constitute a plea of nolo contendere. The Occupations Code §301.657(b) provides that the Board may treat a person's acceptance of corrective action as an admission of a violation if the Board imposes a sanction on the person for a subsequent violation of Chapter 301 or a rule or order adopted under Chapter 301. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 26, 2009.
TRD-200904844
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: September 4, 2009
For further information, please call: (512) 305-6822
22 TAC §§213.20, 213.29, 213.30
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §213.20, concerning Informal Proceedings and Alternate Dispute Resolution (ADR); §213.29, concerning Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters; and §213.30, concerning Declaratory Order of Eligibility for Licensure. The amendments to §213.20 are adopted without changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6255). Section 213.29 and §213.30 are adopted with changes. Section 213.33, concerning Factors Considered for Imposition of Penalties/Sanctions and/or Fines, is withdrawn.
REASONED JUSTIFICATION. The amendments to §§213.20, 213.29, and 213.30 are adopted under the Occupations Code §§301.452, 301.4521, and 301.151. The adopted amendments to §213.20 are necessary to clarify the applicability of the Occupations Code §301.4521. The adopted amendments to §213.29 and §213.30 are necessary for internal consistency and to correct grammatical errors. Section 213.33 is withdrawn. As a result, the provisions of §213.33 that were originally proposed for amendment are fully restored.
The Board formally proposed amendments to §§213.20, 213.29, 213.30, and 213.33 in the September 11, 2009, issue of the Texas Register (34 TexReg 6255). A public hearing on the rule proposal was not requested. The Board received two written comments on the published proposal. The Board's Eligibility and Disciplinary Advisory Committee (Committee) also considered the proposal at its September 17, 2009, meeting. Based upon the comments received, the Board has made minor changes to §213.29 and §213.30 as adopted. Further, as a result of comments received, the Board has withdrawn §213.33 as proposed. However, none of the changes made to the proposed text materially alters issues raised in the proposal, introduces new subject matter, or affects persons other than those previously on notice.
The Occupations Code §301.4521, which was enacted by the 81st Legislature, Regular Session, effective June 19, 2009, 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. Section 301.4521 also requires the Board to adopt (i) guidelines for requiring or requesting an individual to submit to an evaluation and (ii) rules regarding the qualifications for a licensed practitioner to conduct an evaluation.
The amendments to §213.33 were proposed pursuant to §301.4521. The proposed amendments specified circumstances under which an evaluation under §301.4521 would be required and/or requested by the Board; prescribed the credentials that an evaluator must possess in order to conduct an evaluation under §301.4521; and prescribed the requirements that an evaluation must meet under §301.4521. In response to the Board's proposal, commenters stated that the proposed amendments should better reflect that §301.4521 addresses evaluations required by the Board and evaluations requested by the Board differently. Commenters also questioned the necessity of testing for professional character and veracity as part of an evaluation related to physical impairment, mental impairment, or chemical dependency or drug abuse. Commenters also recommended that the Board consider approving additional types of health care providers, such as nurse practitioners, to conduct physical or psychological evaluations under §301.4521.
Although the Board does not agree with all of the comments received, the Board has determined that it should further review the comments before adopting the amendments to §213.33 as proposed. The Board has also determined that additional substantive amendments to §213.33, which were not originally proposed, may now be necessary. Further, for purposes of clarity and consistency, the Board has determined that the proposed amendments to §213.33 should be addressed in the same rule proposal. As such, the Board has determined that it should address the amendments to §213.33 through a separate rulemaking process. Therefore, the Board is withdrawing §213.33 as proposed. As a result, each provision in §213.33 that was originally proposed for amendment is fully restored.
Further, as a result of the restoration of the provisions in §213.33, the Board has determined that it is necessary to make minor changes to §213.29(c)(1) and §213.30(b)(3) as adopted. The title of §213.33 was originally proposed for amendment. Proposed §213.29(c)(1) and §213.30(b)(3) both contained references to the proposed amended title of §213.33. However, the proposed amended title of §213.33 has been restored. As such, in order to maintain consistency among its rules, the Board has changed §213.29(c)(1) and §213.30(b)(3) as adopted to reference the restored title of §213.33.
Remaining Adopted Amendments
The adopted amendments to §213.20 are necessary to clarify that a mental or physical evaluation requested under adopted §213.20 is not subject to the provisions of the Occupations Code §301.4521. A physical or mental evaluation that is requested under adopted §213.20 is not requested by the Board for the resolution of a disciplinary matter. Rather, a physical or mental evaluation may be requested under adopted §213.20 by the peer assistance program in which an individual is participating in order to properly evaluate the individual's impairment level, and to plan, implement, and monitor the individual's rehabilitation and potential return to nursing practice. Decisions regarding whether an evaluation is necessary in a particular case is strictly within the purview of the peer assistance program in which the individual is participating. As such, the provisions of §301.4521 do not apply to such evaluations. The language of §213.20 may have been unclear in this regard, as it stated that the Executive Director of the Board or the peer assistance program could determine whether an individual should undergo a physical or mental evaluation under §213.20. In order to clarify this issue, the adopted amendments to §213.20 provide that only the peer assistance program may determine when an evaluation is required under adopted §213.20. The remaining adopted amendments to §213.20 are necessary to update an outdated reference to the 'Board of Nurse Examiners' and to correct a grammatical error.
The adopted amendments to §213.29 and §213.30 are necessary for consistency with §213.33. Adopted §213.29 requires an individual to obtain an evaluation in any matter before the Board that involves an allegation of chemical dependency or misuse or abuse of drugs of alcohol. Further, adopted §213.29 requires the evaluation to meet the criteria of §213.33. Adopted §213.30 requires a person who is potentially ineligible for licensure due to mental illness or chemical dependency, including alcohol, to submit an evaluation that meets the criteria of §213.33 to the Board. Section 213.33(e) and (f) prescribe the criteria that a fitness for practice evaluation must meet, as well as the credentials that an evaluator must possess in order to perform such an evaluation. Although adopted §213.29 and §213.30 address different scenarios in which the Board may require/request an individual to submit to an evaluation for fitness to practice, §213.33 prescribes the criteria that fitness for practice evaluations must meet, including the credentials that the evaluators must possess in order to conduct the evaluations. As such, it is necessary for adopted §213.29 and §213.30 to reference the criteria prescribed in §213.33 in order to ensure consistency among Board rules.
The adopted amendments to §213.29 are also necessary for consistency with the provisions of §301.4521. The adopted amendments to §213.29 make clear that an individual must pay for an evaluation under §213.29. This adopted requirement is consistent with the Occupations Code §301.4521(i), which states that an individual must pay the costs of an evaluation conducted under §301.4521. An evaluation under §213.29 is subject to the provisions of new §301.4521 because an evaluation under §213.29 will necessarily involve issues of chemical dependency and/or abuse of drugs or alcohol. Section 301.4521(b) provides that the Board may require an individual to submit to an evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely because of chemical dependency or abuse of drugs or alcohol.
HOW THE SECTIONS WILL FUNCTION. Adopted §213.20(h)(1)(C) provides that a nurse required to be reported under the Occupations Code §§301.401 - 301.409 may obtain informal disposition through referral to a peer assistance program, as specified in the Occupations Code §301.410, if the nurse makes a written contract with the Board of Nursing through its Executive Director promising to undergo and pay for such physical and mental evaluations as the peer assistance program determines to be reasonable and necessary to: (i) evaluate the nurse's impairment; (ii) plan, implement, and monitor the nurse's rehabilitation; and (iii) determine if, when, and under what conditions the nurse can safely return to practice. Adopted §213.29(c)(1) provides that if a registered or vocational nurse is reported to the Board for intemperate use, abuse of drugs or alcohol, or diagnosis of or treatment for chemical dependency, or if a person is unable to sign the certification in §213.29(b), that the following restriction and requirement applies: any matter before the Board that involves an allegation of chemical dependency, or misuse or abuse of drugs or alcohol, will require at a minimum that such person obtain for Board review an evaluation that meets the criteria of §213.33. Adopted §213.29(d) states that it shall be the responsibility of those persons subject to §213.29 to submit to and pay for an evaluation that meets the criteria of §213.33. Adopted §213.30(b)(3) provides that a person must submit a petition or application on forms provided by the Board, which includes, if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 and evidence of treatment. Adopted §213.30(b)(4) provides that a person must submit a petition or application on forms provided by the Board which includes, if the potential ineligibility is due to chemical dependency, including alcohol, evidence of an evaluation that meets the criteria of §213.33, treatment, after care, and support group attendance. The title of §213.33 reads as: Factors Considered for Imposition of Penalties/Sanctions and/or Fines. Section 213.33(a) specifies the factors that 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. Further, these factors must be considered by the State Office of Administrative Hearings (SOAH) when recommending a sanction and the Board in determining the appropriate penalty/sanction in disciplinary cases. Section 213.33(e) provides that, when determining evidence of present fitness to practice, the Executive Director may require 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. Further, §213.33(e) provides that the evaluator must be familiar with the duties appropriate to the nursing profession. Section 213.33(e) also states that the evaluation must be conducted pursuant to professionally recognized standards and methods and 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. Section 213.33(e) also provides that 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. Section 213.33(e) also states that the applicant or licensee should be provided a copy of the evaluation upon completion by the evaluator; and, if not, the Board will provide the individual a copy. Section 213.33(f)(1) provides that, when determining evidence of present fitness to practice by a licensee or applicant for licensure, the Board or Executive Director may request an individual risk assessment conducted by a Board-approved forensic psychologist or psychiatrist who: (i) evaluates the criminal history of the person; (ii) seeks to predict 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 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 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. Section 213.33(f)(2) provides that the applicant or licensee 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. Section 213.33(f)(3) provides that the applicant or licensee should be provided a copy of the evaluation upon completion by the evaluator; and, if not, the Board will provide the individual a copy. Section 213.33(g) provides that, in accordance with the provisions of the 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 has adopted recommended guidelines for disciplinary orders and conditions of probation for violations of the NPA. Further, §213.33(g) states that the purpose of these guidelines is to give notice to licensees of the range of penalties which will normally be imposed for violations of the provisions in the Occupations Code Chapter 301 Subchapter J. Section 213.33(g) also provides that these disciplinary guidelines are based upon a single count violation of each provision listed. Section 213.33(g) provides that 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. Section 213.33(g) also provides that 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. Section 213.33(g)(2) provides that 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: (i) denial of the person's application for a license, license renewal, 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; (iii) setting reasonable probationary stipulations as a condition of the issuance, reinstatement, or renewal of the license or temporary permit, including: (A) submitting to an evaluation as outlined in §213.33(e); and (B) abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing; (iv) determining, in accordance with §301.468 of the NPA, that an order denying a license application, license renewal, or temporary permit be probated; (v) issuance of a Warning, which shall include reasonable probationary stipulations which may include abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing; (vi) issuance of a Reprimand, which shall include reasonable probationary stipulations which may include abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing; and (vii) suspension of the person's license, which may be: (A) enforced and active for a specific period; or (B) probated with reasonable probationary stipulations as a condition for lifting or staying the order of suspension, including submitting to an evaluation as outlined in §213.33(e) and abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
§213.33(e) and (f)
Comment: A commenter who represents an organization states that the Occupations Code §301.4521(b) - (e) specifically applies to evaluations the Board is authorized to require, and §301.4521(f) - (g) applies to evaluations the Board is authorized to request. The commenter further states that §213.33(e) governs evaluations the Board is authorized to require and §213.33(f) governs evaluations the Board is authorized to request. The commenter states that the proposed rules state in §213.33(f)(4): 'The provisions of the Occupations Code §301.4521 apply to an evaluation requested under this subsection.' The commenter states that there is no corresponding provision in proposed rule §213.33(e). The commenter requests that the proposed sections be amended to reflect that §301.4521 addresses required and requested evaluations differently. The commenter requests that the proposed rules be amended to include specific reference to §301.4521(f) - (g) in proposed §213.33(f)(4) and §301.4521(b) - (e) in proposed §213.33(e).
The commenter also states that his organization does not believe that it is appropriate to require testing of professional character and veracity as part of an evaluation required due to possible physical impairment, mental impairment, or chemical dependency or abuse. The commenter states that the testing of these two items is more appropriate to evaluations the Board is authorized to request under §301.4521(f). The commenter states that an evaluation of physical impairment would normally not be designed to test professional character or veracity. The commenter further states that even psychological stability may not be tested. The commenter requests that the proposed rules be amended to provide that an evaluation must include the utilization of objective tests and instruments which at a minimum are designed to test the fitness to practice and, when appropriate, the psychological stability of the person subject to evaluation.
Another commenter representing an organization recommends that the Board add advanced practice registered nurses to the types of health care providers that the Board may approve to provide a physical or psychological evaluation of a nurse's competency to safely practice. The commenter states that advanced practice registered nurses are practicing in various specialties that might qualify them to provide the type of evaluations required by the Board. Further, the commenter states that advanced practice registered nurses are more likely than any other type of health care providers to be aware of the physical and psychological demands on a nurse, and, therefore, may be uniquely qualified to evaluate a nurse's fitness to practice. Further, the commenter states that there seems to be an error in the use of the term 'osteopathic' in the proposed rule and suggests that it might be clearer to substitute the term 'doctor of osteopathy' in the rule text.
Agency Response: While the Board does not agree with all of the comments received, the Board has determined that it should further review and consider the comments before adopting the amendments to §213.33 as proposed. The Board has also determined that additional substantive amendments to §213.33, which were not proposed in this rule proposal, may now be necessary. As such, the Board has determined that it should address any new requirements regarding physical and psychological evaluations under the Occupations Code §301.4521 through a separate rulemaking process. Further, for purposes of clarity and consistency, the Board has determined that it should address all other proposed amendments to §213.33 in the same rule proposal. Thus, the Board will publish a notice of proposal with a 30-day comment period before proceeding further with any proposed amendments to §213.33. Therefore, the Board is withdrawing §213.33 as proposed, and the provisions of §213.33 that were originally proposed for amendment are fully restored.
The Eligibility and Disciplinary Advisory Committee
The Eligibility and Disciplinary Advisory Committee (Committee) convened on September 17, 2009 and considered the proposed amendments to 22 TAC §213.20, pertaining to Informal Proceedings and Alternate Dispute Resolution (ADR); §213.29, pertaining to Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters; §213.30, pertaining to Declaratory Order of Eligibility for Licensure; and §213.33, pertaining to Factors Considered for Imposition of Penalties/Sanctions and/or Fines. Certain members of the Committee expressed concern that the proposed rules were too restrictive and suggested that additional health care providers be considered for performing physical and psychological evaluations. One member of the Committee requested that the Board consider whether nurse practitioners could provide evaluations in certain situations where the practitioner's specialty was appropriate and relevant. One member of the Committee also pointed out that the use of 'osteopathic' was probably an incorrect usage of the term. Most of the members of the Committee agreed that it should be made clear that an evaluator must have the appropriate credentials, experience, and expertise to conduct an evaluation.
The Board declines to make any of the Committee's suggested modifications to the proposed rule at this time for the reasons set forth previously in this Rule Adoption.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE PROPOSAL.
For: None.
Against: None.
For, with changes: None.
Neither for nor against, with changes: The Texas Nurses Association; The Coalition for Nurses in Advanced Practice.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §§301.452, 301.4521, and 301.151. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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). The Occupations Code §301.452(d) requires the Board, by rule, to establish guidelines to ensure that any arrest information, in particular information on arrests in which criminal action was not proven or charges were not filed or adjudicated, that is received by the Board under §301.452 is used consistently, fairly, and only to the extent the underlying conduct relates to the practice of nursing. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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 the State Office of Administrative Hearings. 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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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). The Occupations Code §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. The Occupations Code §301.4521(i) states that a nurse or applicant shall pay the costs of an evaluation conducted under §301.4521. The Occupations Code §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 the State Office of Administrative Hearings under Chapter 301; or (B) included in the findings of fact and conclusions of law in a final Board order. The Occupations Code §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 this section, the evaluation must be expunged from the Board's records. The Occupations Code §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. The Occupations Code §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 this chapter. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing.
§213.29.Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters.
(a) A person desiring to obtain or retain a license to practice professional or vocational nursing shall provide evidence of current sobriety and fitness consistent with this rule.
(b) Such person shall provide a sworn certificate to the Board stating that he/she has read and understands the requirements for licensure as a registered or vocational nurse and that he/she has not:
(1) within the past five years, become addicted to or treated for the use of alcohol or any other drug; or
(2) within the past five years, been diagnosed with, treated or hospitalized for schizophrenia and/or other psychotic disorders, bi-polar disorder, paranoid personality disorder, antisocial personality disorder or borderline personality disorder.
(c) If a registered or vocational nurse is reported to the Board for intemperate use, abuse of drugs or alcohol, or diagnosis of or treatment for chemical dependency; or if a person is unable to sign the certification in subsection (b) of this section, the following restrictions and requirements apply:
(1) Any matter before the Board that involves an allegation of chemical dependency, or misuse or abuse of drugs or alcohol, will require at a minimum that such person obtain for Board review an evaluation that meets the criteria of §213.33 of this chapter (relating to Factors Considered for Imposition of Penalties/Sanctions and/or Fines);
(2) Those persons who have become addicted to or treated for alcohol or chemical dependency will not be eligible to obtain or retain a license to practice as a nurse unless such person can demonstrate sobriety and abstinence for the preceding twelve consecutive months through verifiable and reliable evidence, or can establish eligibility to participate in a peer assistance program created pursuant to Chapter 467 of the Health and Safety Code;
(3) Those persons who have become addicted to or treated for alcohol or chemical dependency will not be eligible to obtain or retain an unencumbered license to practice nursing until the individual has attained a five-year term of sobriety and abstinence or until such person has successfully completed participation in a board-approved peer assistance program created pursuant to Chapter 467 of the Health and Safety Code.
(4) Those persons who have been diagnosed with, treated, or hospitalized for the disorders mentioned in subsection (b) of this section shall execute an authorization for release of medical, psychiatric, and treatment records.
(d) It shall be the responsibility of those persons subject to this rule to submit to and pay for an evaluation that meets the criteria of §213.33 of this chapter.
(e) Prior intemperate use, mental illness, or diminished mental capacity is relevant only so far as it may indicate current intemperate use or lack of fitness.
(f) With respect to chemical dependency in eligibility and disciplinary matters, the executive director is authorized to:
(1) review submissions from a movant, materials and information gathered or prepared by staff, and identify any deficiencies in file information necessary to determine the movant's request;
(2) close any eligibility file in which the movant has failed to respond to a request for information or to a proposal for denial of eligibility within 60 days thereof;
(3) approve eligibility, enter eligibility orders and approve renewals, without Board ratification, when the evidence is clearly insufficient to prove a ground for denial of licensure; and
(4) propose conditional orders in eligibility, disciplinary and renewal matters for individuals who have experienced chemical/alcohol dependency within the past five years provided:
(A) the individual presents reliable and verifiable evidence of having functioned in a sober/abstinent manner for the previous twelve consecutive months; and
(B) licensure limitations/stipulations and/or peer assistance program participation can be implemented which will ensure that patients and the public are protected until the individual has attained a five-year term of sobriety/abstinence.
(g) With respect to mental illness or diminished mental capacity in eligibility, disciplinary, and renewal matters, the executive director is authorized to propose conditional orders for individuals who have experienced mental illness or diminished mental capacity within the past five years provided:
(1) the individual presents reliable and verifiable evidence of having functioned in a manner consistent with the behaviors required of nurses under the Nursing Practice Act and Board rules for at least the previous twelve consecutive months; and
(2) licensure limitations/stipulations and/or peer assistance program participation can be implemented which will ensure that patients and the public are protected until the individual has attained a five-year term of controlled behavior and consistent compliance with the requirements of the Nursing Practice Act and Board rules.
(h) In renewal matters involving chemical dependency use, mental illness, or diminished mental capacity, the executive director shall consider the following information from the preceding renewal period:
(1) evidence of the licensee's safe practice;
(2) compliance with the NPA and Board rules; and
(3) written verification of compliance with any treatment.
(i) Upon receipt of items (h)(1) - (3) of this section, the executive director may renew the license.
(j) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), or the Board in evaluating the appropriate licensure determination or sanction in eligibility and disciplinary matters:
(1) 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 web site at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(2) 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 http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
§213.30.Declaratory Order of Eligibility for Licensure.
(a) A person enrolled or planning to enroll in an educational nursing program that prepares a person for an initial license as a registered or vocational nurse or an applicant who seeks licensure by endorsement pursuant to §217.5 of this title (relating to Temporary License and Endorsement) who has reason to believe that he or she may be ineligible for licensure, may petition the Board for a declaratory order or apply for a license by endorsement as to his or her eligibility.
(b) The person must submit a petition or application on forms provided by the Board which includes:
(1) a statement by the petitioner or applicant indicating the reason(s) and basis of potential ineligibility;
(2) if the potential ineligibility is due to criminal conduct and/or conviction, any court documents including, but not limited to, indictments, orders of deferred adjudication, judgments, probation records and evidence of completion of probation, if applicable;
(3) if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 of this chapter (relating to Factors Considered for Imposition of Penalties/Sanctions and/or Fines) and evidence of treatment;
(4) if the potential ineligibility is due to chemical dependency including alcohol, evidence of an evaluation that meets the criteria of §213.33 of this chapter and treatment, after care and support group attendance; and
(5) the required fee which is not refundable.
(c) An investigation of the petition/application and the petitioner's/applicant's eligibility shall be conducted.
(d) The petitioner/applicant or the Board may amend the petition/application to include additional grounds for potential ineligibility at any time before a final determination is made.
(e) If an applicant under §217.5 of this title has been licensed to practice professional or vocational nursing in any jurisdiction and has been disciplined, or allowed to surrender in lieu of discipline, in that jurisdiction, the following provisions shall govern the eligibility of the applicant under §213.27 of this title (relating to Good Professional Character).
(1) A certified copy of the order or judgment of discipline from the jurisdiction is prima facie evidence of the matters contained in such order or judgment, and a final adjudication in the other jurisdiction that the applicant has committed professional misconduct is conclusive of the professional misconduct alleged in such order or judgment.
(2) An applicant disciplined for professional misconduct in the course of nursing in any jurisdiction or an applicant who resigned in lieu of disciplinary action is deemed to not have present good professional character under §213.27 of this title and is therefore ineligible to file an application under §217.5 of this title during the period of such discipline imposed by such jurisdiction, and in the case of revocation or surrender in lieu of disciplinary action, until the applicant has filed an application for reinstatement in the disciplining jurisdiction and obtained a final determination on that application.
(f) If a petitioner's/applicant's potential ineligibility is due to criminal conduct and/or conviction, the following provisions shall govern the eligibility of the applicant under §213.28 of this title (relating to Licensure of Persons with Criminal Convictions):
(1) The record of conviction or order of deferred adjudication is conclusive evidence of guilt.
(2) Upon proof that a felony conviction or felony order of probation with or without adjudication of guilt has been set aside or reversed, the petitioner or applicant shall be entitled to a new hearing before the Board for the purpose of determining whether, absent the record of conclusive evidence of guilt, the petitioner or applicant possesses present good professional character and fitness.
(g) If the executive director proposes to find the petitioner or applicant ineligible for licensure, the petitioner or applicant may obtain a hearing before the State Office of Administrative Hearings. The Executive Director shall have discretion to set a hearing and give notice of the hearing to the petitioner or applicant. The hearing shall be conducted in accordance with §213.22 of this title (relating to Formal Proceedings) and the rules of SOAH. When in conflict, SOAH's rules of procedure will prevail. The decision of the Board shall be rendered in accordance with §213.23 of this title (relating to Decision of the Board).
(h) A final Board order is issued after an appeal results in a Proposal for Decision from SOAH. The Board's final order must set out each basis for potential ineligibility and the Board's determination as to eligibility. In the absence of new evidence not disclosed by the petitioner or not reasonably available to the Board at the time the order is issued, the Board's ruling determines the person's eligibility with respect to the grounds for potential ineligibility as set out in the order. An individual whose petition is denied by final order of the Board may not file another petition or application for licensure until after the expiration of three years from the date of the Board's order denying the petition or application for licensure. If the applicant or petitioner does not appeal or request a formal hearing at SOAH after a letter proposal to deny eligibility made by the E&D Committee or the executive director, the applicant or petitioner may re-petition after the expiration of one year from the date of the proposal to deny eligibility, in accordance with this rule and §301.257, Texas Occupations Code.
(i) 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 declaratory order of eligibility; and the Board in determining the appropriate declaratory order in 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 at (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 26, 2009.
TRD-200904843
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §213.23, concerning Decision of the Board. The amendments are adopted with changes to the proposed text published in the August 28, 2009, issue of the Texas Register (34 TexReg 5855) to correct minor typographical errors. The changes correct references from the "board" to the "Board" in §213.23(d) as adopted.
REASONED JUSTIFICATION. The amendments to §213.23 are adopted under the Occupations Code §301.459(a) and §301.151 and the Government Code §2001.004 and §2001.062(a) and (b) and are necessary to implement the Board's amended policy regarding the appearance of individuals before the Board. Specifically, the adopted amendments establish the specific procedures and requirements that must be met before an individual will be permitted to appear before the Board to make an oral presentation regarding a Proposal for Decision (PFD).
Historically, the Board has permitted an individual affected by a PFD to appear before it to make an oral presentation prior to the Board's final deliberation and decision. Although individuals are requested to submit their arguments and briefing to the Board in advance of the Board meeting in which the PFD is scheduled to be considered, the majority of individuals ignore this request and, instead, opt to orally address the Board during its open meeting. The Board's policy of permitting individuals to appear before it to make oral presentations regarding PFDs was intended to provide individuals with an additional opportunity to be heard, and to maintain a sense of fairness in Board decisions. However, over time, it has become clear that most individuals inappropriately utilize the oral forum to present information to the Board that was not considered by the ALJ. As a result, the Board re-considered its policy of permitting individuals to appear before it at the April, 2009, Board meeting, and voted to amend its policy. The amended policy permits an individual to appear before the Board to make an oral presentation regarding a PFD provided that the individual provides written exceptions or briefs to the Board in advance of the Board meeting where the PFD will be considered.
The Government Code §2001.062(a)(2) requires a party who may be adversely affected by an agency decision to be given an opportunity to file exceptions and present briefs to the state agency officials who will render the final decision. Additionally, if exceptions or briefs are filed by a party, §2001.062(b) requires that the other party be given an opportunity to file replies to the exceptions or briefs. Neither the Government Code Chapter 2001 nor the Occupations Code Chapter 301, however, requires the Board to provide an individual with an additional opportunity to appear before it to make an oral presentation regarding a PFD once the individual has been afforded a hearing at the State Office of Administrative Hearings (SOAH). The Board recognizes that an individual who appears before it may present information to the Board that was not presented to the ALJ. The Board has determined that the receipt and consideration of such information is problematic and should be controlled. The adopted amendments are designed to minimize this risk by requiring an individual to pre-file his or her written exceptions and briefs with the Board. Further, the adopted requirements are consistent with the intent of the Government Code §2001.062, which contemplates the presentation of legal argument through the submission of written exceptions and briefs and written responses to exceptions and briefs.
In accordance with the requirements of the Government Code §2001.062, the adopted amendments to §213.23(d) provide parties an opportunity to file (i) written exceptions and briefs with the Board concerning a PFD; and (ii) responses to written exceptions and briefs. Under this adopted amendment, an individual is entitled to file written exceptions and briefs regarding a PFD and responses to written exceptions and briefs regarding a PFD with the Board. If the individual intends to appear before the Board to make an oral presentation regarding the PFD, the adopted amendments to §213.23(d) require the individual to first file written exceptions or briefs with the Board at least 21 days prior to the date of the Board meeting in which the Board will consider the PFD. If the individual fails to meet this requirement by either not filing written exceptions or briefs or by filing written exceptions or briefs untimely, the individual will not be permitted to appear before the Board to make an oral presentation. Further, under the adopted amendments, an individual will not be permitted to make an oral presentation to the Board concerning a proposed modification to a PFD unless the individual has filed a written response to the proposed modification at least 10 days prior to the date of the Board meeting where the Board will consider the PFD. Should the individual fail to meet this requirement by either not filing a written response to the proposed modification to the PFD or by filing a written response to the proposed modification untimely, the individual will not be permitted to appear before the Board to make an oral presentation.
The adopted amendment to §213.23(c) is necessary to clarify that a PFD may be acted upon by the Board or the Eligibility and Disciplinary Committee, pursuant to the requirements of adopted §213.23. The remaining adopted amendments are necessary to re-designate the subsections in §213.23.
HOW THE SECTIONS WILL FUNCTION. Adopted §213.23(c) provides that a PFD may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with §213.23, after the expiration of 10 days after the filing of replies to exceptions to the PFD or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed. Adopted §213.23(d) provides that parties shall have an opportunity to file written exceptions and briefs with the Board concerning a PFD. Further, adopted §213.23(d) states that an opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a PFD unless the Respondent has first filed written exceptions or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. Finally, adopted §213.23(d) provides that a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a PFD unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the PFD. The remaining adopted amendments re-designate the subsections in §213.23.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
§213.23(d)
Comment: Three individual commenters expressed concern that the proposed rules do not apply equally to all parties. The commenters state that there is a possibility that evidence and testimony, which was not considered by the ALJ issuing the PFD, might be presented to the Board, not just by the Respondent, but by Board Staff. The commenters state that, in order to ensure a fair and balanced process, the proposed rules should not be limited to the Respondent, but should apply equally to all parties. The commenters further suggest changing all references in §213.23(d) from "Respondent" to "Party" so that the proposed requirements apply to both the Respondent and Board Staff.
Agency Response: The Board declines to make the suggested change. The Board is not required by the Government Code Chapter 2001 (Administrative Procedure Act) or the Occupations Code Chapter 301 to provide a Respondent with an opportunity to appear before it to make an oral presentation regarding a PFD once the individual has been afforded a hearing at SOAH. Nevertheless, out of a sense of fairness, the Board has determined that it is important to offer Respondents this additional opportunity to be heard, provided they present written material for Board consideration prior to the presentation.
While the Board believes that this opportunity should be preserved, the Board also recognizes the need to adopt requirements and procedures that will help maintain the integrity of its decisions. The adopted requirements are intended to minimize and reduce the risk of the introduction of new information and evidence not properly vetted during the evidentiary hearing before the ALJ.
The Board has determined that there is no need to impose the identical criteria of the adopted rule towards Board Staff at this time. The adopted amendments are intended to address the problematic issues the Board has experienced with Respondents when the Board has permitted an oral audience before it not otherwise permitted by the Administrative Procedure Act. The adopted amendments do not impose unfair, unreasonable, or overly burdensome requirements on Respondents seeking to appear before the Board. Rather, the adopted amendments provide Respondents with an additional opportunity to be heard, which is not required by law. Further, the Government Code Chapter 2001 currently provides adequate remedy for any error or abuse committed by Board Staff, which can be cured on appeal.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE PROPOSAL. For: None. Against: An individual commenter. For, with changes: None. Neither for nor against, with changes: Two individual commenters.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §§301.459(a), 301.505(c), and 301.151 and the Government Code §2001.004 and §2001.062(a) and (b). The Occupations Code §301.459(a) requires the Board, by rule, to adopt procedures under the Government Code Chapter 2001 governing formal disposition of a contested case. The Occupations Code §301.505(c) requires the ALJ to make findings of fact and conclusions of law and promptly issue to the Board a PFD as to the occurrence of the violation and the amount of any proposed administrative penalty. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing. The Government Code §2001.004 states that, in addition to other requirements under law, a state agency shall: (1) adopt rules of practice stating the nature and requirements of all available formal and informal procedures; (2) index, cross-index to statute, and make available for public inspection all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions; and (3) index, cross-index to statute, and make available for public inspection all final orders, decisions, and opinions. The Government Code §2001.062(a) provides that, in a contested case, if a majority of the state agency officials who are to render a final decision have not heard the case or read the record, the decision, if adverse to a party other than the agency itself, may not be made until: (1) a PFD is served on each party; and (2) an opportunity is given to each adversely affected party to file exceptions and present briefs to the officials who are to render the decision. Section 2001.062(b) states that, if a party files exceptions or presents briefs, an opportunity shall be given to each other party to file replies to the exceptions or briefs.
§213.23.Decision of the Board.
(a) Except as to those matters expressly delegated to the executive director for ratification, either the Board or the Eligibility and Disciplinary Committee, may make final decisions in all matters relating to the granting or denial of a license or permit, discipline, temporary suspension, or administrative and civil penalties.
(b) Any party of record who is adversely affected by the proposal for decision of the judge shall have the opportunity to file exceptions and a brief to the proposal for decision within 15 days after the date of service of the proposal for decision. A reply to the exceptions may be filed by the other party within 15 days of the filing of the exceptions. Exceptions and replies shall be filed with the judge with copies served on the opposing party. The proposal for decision may be amended by the judge pursuant to the exceptions, replies, or briefs submitted by the parties without again being served on the parties.
(c) The proposal for decision may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with this section, after the expiration of 10 days after the filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.
(d) Parties shall have an opportunity to file written exceptions and briefs with the Board concerning a proposal for decision. An opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposal for decision unless the Respondent has first filed written exceptions or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. A Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a proposal for decision unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the proposal for decision.
(e) It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when, the Board determines:
(1) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;
(2) that a prior administrative decision on which the judge relied is incorrect or should be changed; or
(3) that a technical error in a finding of fact should be changed.
(f) If the Board modifies, amends, or changes the recommended order of the judge, an order shall be prepared reflecting the Board's changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection (e) of this section.
(g) An order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.
(h) A copy of the order shall be mailed to all parties and to the party(s last known employer as a nurse.
(i) The decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where:
(1) the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and
(2) the order states it is final and effective on the date rendered.
(j) A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection (i) of this section.
(k) Motions for rehearing are controlled by Texas Government Code §2001.145.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 26, 2009.
TRD-200904845
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: August 28, 2009
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments and new paragraphs to §213.32, concerning Schedule of Administrative Fine(s). New §213.32(2) is adopted with changes to the proposed text as published in the September 4, 2009, issue of the Texas Register (34 TexReg 6078). New §213.32(1), (3), and (4), and amended §213.32(5), (6), and (7) are adopted without changes to the proposed text.
REASONED JUSTIFICATION. New §213.32(1) - (4) is adopted under the Occupations Code §§301.651 - 301.657, which authorizes the use of corrective actions, and is necessary to implement Senate Bill (SB) 1415, enacted by the 81st Legislature, Regular Session, effective September 1, 2009, which adds new Subchapter N to the Occupations Code Chapter 301. Amended §213.32(5) - (7) is adopted under the Occupations Code §§301.453(a), 301.4531, 301.501, and 301.502 and is necessary to revise and clarify the disciplinary sanctions and the amount of administrative fines that may be imposed upon an individual in a disciplinary action.
The Board adopted emergency amendments to §213.32 on September 1, 2009. Pursuant to the Government Code §2001.034, the Board is authorized to adopt an emergency rule without prior notice or hearing if a requirement of state or federal law requires the adoption of a rule on fewer than 30 days' notice. Further, an emergency rule adopted under the Government Code §2001.034 may not be effective for longer than 120 days and may be renewed once for no longer than 60 days. The adopted emergency amendments to §213.32 were published in the September 11, 2009, issue of the Texas Register (34 TexReg 6199) and are scheduled to expire on December 29, 2009. The Board is adopting the instant amendments and new paragraphs to §213.32 to permanently replace the emergency amendments to §213.32 that were adopted on September 1, 2009.
The Board formally proposed the amendments and new paragraphs to §213.32 in the September 4, 2009, issue of the Texas Register (34 TexReg 6078). A public hearing on the rule proposal was not requested. The Board received one written comment on the published proposal. The Board's Eligibility and Disciplinary Advisory Committee (Committee) also considered the proposal at its September 17, 2009, meeting. Based upon the Committee's discussions and observations, the Board has changed some of the proposed language in the text of the rule as adopted. None of the changes made to the proposed text, however, materially alters issues raised in the proposal, introduces new subject matter, or affects persons other than those previously on notice.
The Board has made changes to §213.32(2) as adopted based upon the Committee's discussions and observations. Certain members of the Committee expressed concern that the proposed rules were too restrictive and suggested that the Executive Director be given more flexibility in determining which violations could be resolved through a corrective action. Further, one member of the Committee requested that the Board consider including an advanced practice registered nurse's failure to apply for prescriptive authority in a new role as a type of violation for which a corrective action could be imposed. In order to adequately protect the health, safety, and welfare of the public, the Board has determined that a corrective action should be reserved for violations that are minor, limited, and administrative in nature. The Board finds that an advanced practice registered nurse's failure to apply for prescriptive authority in a new role poses a low risk of harm to the public and could be appropriately resolved though a corrective action. As a result, the Board has revised §213.32(2) as adopted to allow for such consideration. Specifically, a new subparagraph has been added to §213.32(2) as adopted which authorizes the Board to impose a corrective action for the failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area, where the advanced practice registered nurse otherwise meets all requirements for prescriptive authority as specified in 22 TAC Chapter 222 (relating to Advanced Practice Nurses With Prescriptive Authority).
The following paragraphs provide a brief summary, as well as an analysis, of the reasons for the adopted amendments and new paragraphs.
Corrective Action Proceedings
SB 1415 enacts a significant change to the Occupations Code Chapter 301 that affects the regulation of licensees and individuals subject to Chapter 301. SB 1415 adds new Subchapter N, §§301.651 - 301.657, to Chapter 301. These new sections authorize the Board to impose a corrective action on an individual who violates a provision of Chapter 301 or a rule or order adopted under Chapter 301. SB 1415 defines a corrective action as a non-disciplinary action consisting of a fine, remedial education, or any combination of a fine or remedial education. This is a particularly significant aspect of the new law. Disciplinary actions under the Occupations Code Subchapter J are reported by the Board to the public and to the Healthcare Integrity and Protection Data Bank (HIPDB), a national database created by the U.S. Department of Health and Human Services to combat fraud and abuse in health insurance and health care delivery. A corrective action under new Subchapter N, however, will not be reportable to the public or HIPDB. Further, SB 1415 makes a corrective action under new Subchapter N confidential by law and generally non-disclosable to the public. The Occupations Code §301.652(a)(3) provides that a corrective action is subject to disclosure only to the extent that a complaint is subject to disclosure under the Occupations Code §301.466. A complaint is confidential by law under §301.466(a) and is generally not subject to disclosure under the Government Code Chapter 552 or through discovery, subpoena, or other means of legal compulsion. While the Occupations Code §301.466(b) provides specific exceptions through which a complaint may be disclosed to a person besides the Board and its employees and agents, these exceptions are limited in scope. In the same way, a corrective action under SB 1415 will not be disclosed unless one of the specified exceptions in §301.466(b) applies. SB 1415 also authorizes the Executive Director of the Board to offer an individual a corrective action if the individual has committed a violation for which a corrective action may be imposed. If the individual accepts the offer of the corrective action, SB 1415 requires the Board to close the case. However, if the individual chooses not to accept the offer of the corrective action, or if the individual fails to respond in a timely manner to the offer of the corrective action, SB 1415 requires the Executive Director to terminate the proceedings under new Subchapter N and to dispose of the matter as a complaint under Subchapter J.
SB 1415 requires the Board to adopt, by rule, guidelines for the types of violations for which a corrective action may be imposed under new Subchapter N. Adopted new §213.32(1) - (4) implements this requirement by: (i) identifying the specific violations for which a corrective action may be offered; (ii) establishing the eligibility requirements that an individual must meet in order to qualify to receive a corrective action; (iii) establishing the amount of the fine that may be imposed as part of a corrective action; (iv) clarifying that the Executive Director has the sole discretion to offer an individual a corrective action; and (v) clarifying that an individual may not receive a corrective action as the result of a contested case proceeding conducted under the Government Code Chapter 2001.
Adopted new §213.32(1) defines the term 'corrective action' and clarifies that a corrective action under §213.32 is not a disciplinary action under Subchapter J. This adopted new paragraph is necessary to emphasize the difference between a corrective action proceeding under new Subchapter N and a disciplinary action under Subchapter J. SB 1415 specifically provides that a corrective action is not a disciplinary action. This distinction is significant because the Board's existing disciplinary policies, procedures, and requirements will not apply to a corrective action proceeding under new Subchapter N. Rather, the Board will apply the procedures and requirements of SB 1415 and the provisions of adopted §213.32 to a corrective action proceeding. As such, it is imperative that each licensee and individual regulated under Chapter 301 become familiar with the differences in these policies, procedures, and requirements.
The provisions of adopted new §213.32(2) - (4) establish the specific procedures and requirements that will apply to a corrective action proceeding under new Subchapter N. Adopted new §213.32(2) specifies seven types of violations for which the Board may offer an individual a corrective action. These are the only types of violations that may be resolved through a corrective action proceeding. The Board has determined that it is not appropriate for a corrective action to be offered in cases where: (i) errors in practice or medication administration have occurred; (ii) an individual's criminal conduct is at issue; (iii) an individual's drug abuse, chemical dependency, or substance abuse is at issue; or (iv) an individual's physical or mental status is at issue. This is primarily because a corrective action will not be reported to the public or HIPDB. As a result, members of the public, such as an individual's employer or client, will not be made aware of the individual's conduct that resulted in the corrective action. This does not generally concern the Board, provided that the individual's conduct is isolated and relatively minor in nature. However, the Board is concerned with cases involving more serious conduct, such as medication administration errors and impairment issues. In these types of cases, an individual's conduct should be evaluated and sanctioned pursuant to the Board's established disciplinary policies, procedures, and requirements, and notice of the individual's conduct should be provided to the public and HIPDB. The Board has determined that it cannot effectively regulate an individual who has committed a serious violation through a corrective action proceeding. For violations of a serious nature, the Board must be able to proceed under its established disciplinary policies, procedures, and requirements that provide for the sanctioning, monitoring, and reporting of such conduct. For violations that involve conduct that is relatively minor in nature, however, the Board believes that corrective action proceedings can effectively address those issues. Therefore, the Board is adopting new §213.32(2), which specifies seven minor, administrative violations that may be resolved through corrective action proceedings. These specified violations typically involve a low risk of harm to the public. As such, the Board believes that these types of violations may be safely resolved through a corrective action proceeding.
Adopted new §213.32(2) also makes clear that a corrective action is only appropriate in situations where an individual has committed one of the specified violations for the first time. If an individual has committed one of the specified violations more than once, the individual will not be eligible to receive a corrective action. This requirement is necessary to ensure that an individual's repeated pattern of conduct is reviewed under the Board's established disciplinary policies and procedures to determine whether a more severe sanction should be imposed on the individual in order to prevent the individual from committing the violation again.
Adopted new §213.32(3) further clarifies that an individual will not be eligible to receive a corrective action if the individual has committed more than one of the violations specified in adopted new §213.32(2). Like the provision in adopted new §213.32(2), this new requirement is necessary to ensure that an individual's pattern of conduct is reviewed under the Board's existing disciplinary policies and procedures to determine whether a more severe sanction should be imposed in order to prevent the re-occurrence of the conduct. While the Board believes that a single violation committed by an individual may be appropriately resolved through a corrective action proceeding under new Subchapter N, the Board has determined that multiple violations may indicate a more serious disciplinary issue and should be resolved through the Board's established disciplinary policies and procedures. The adopted amendments and new paragraphs support this position by prohibiting an individual from receiving a corrective action if the individual has committed multiple violations.
SB 1415 permits a corrective action to consist of remedial education, a fine, or any combination of remedial education and a fine. Pursuant to new Subchapter N, the Board has determined the amount of a fine imposed as part of a corrective action under new Subchapter N to be $500. The Board has considered the following factors in determining the amount of this fine: (i) the seriousness of the violations for which a corrective action may be imposed; (ii) the amount necessary to defer future violations; (iii) the harm likely caused by the violations for which a corrective action may be imposed; and (iv) the hazard or potential hazard to the health, safety, and economic welfare of the public. Although the violations specified in adopted new §213.32(2) are typically less serious than violations involved in a disciplinary action, such conduct should not be repeated. Further, all violations of statute or Board rule or policy should be taken seriously, regardless of whether the conduct results in a corrective action under new Subchapter N or a disciplinary action under Subchapter J. As such, the Board has determined that a fine in the amount of $500 should be sufficient to deter an individual from repeating the conduct that resulted in the corrective action. Further, the Board has determined that a fine in the amount of $500 is appropriate in light of the seriousness of the types of violations for which a corrective action may be imposed and the risk of harm to the public that the violations may cause.
Finally, adopted new §213.32(4) is necessary to clarify that the Executive Director of the Board has the sole discretion, subject to Board regulation, to offer an individual a corrective action under new Subchapter N. Adopted new §213.32(4) also clarifies that a corrective action is not available as the result of a contested case proceeding under the Government Code Chapter 2001. SB 1415 provides that the Executive Director may determine if an individual has committed a violation for which a corrective action may be imposed. Further, SB 1415 provides that the Executive Director may give written notice of her determination and recommendation for the corrective action to the individual. SB 1415 also requires a case to be closed if the individual accepts the Executive Director's determination and satisfies the recommended corrective action. If the individual does not accept the Executive Director's determination and recommended corrective action, however, SB 1415 directs the Executive Director to terminate proceedings under new Subchapter N and to dispose of the matter as a complaint under Subchapter J. The provisions of adopted new §213.32(4) are consistent with these new statutory sections. First, adopted new §213.23(4) re-iterates the difference between a corrective action proceeding under new Subchapter N and a disciplinary proceeding under Subchapter J. Because a corrective action proceeding is not a disciplinary action under Subchapter J and is not subject to the Government Code Chapter 2001, a corrective action is not a remedy that will be available to an individual as the result of a contested case under the Government Code Chapter 2001. Only if an individual rejects the offer of a corrective action or fails to timely respond to the offer of the corrective action will the matter be terminated under new Subchapter N and be disposed of as a disciplinary action under Subchapter J. In that situation, an individual will be entitled to the remedies available as the result of a contested case under the Government Code Chapter 2001. Those remedies, however, will not include a corrective action. Adopted new §213.32(4) re-emphasizes this distinction and clarifies that a corrective action is not a remedy that will be available to an individual who is afforded a hearing in a disciplinary matter at the State Office of Administrative Hearings.
Fines in Disciplinary Matters
The remaining adopted amendments are necessary to revise and clarify the disciplinary sanctions and the amount of administrative fines that may be imposed upon an individual in a disciplinary action. The provisions of adopted §213.32(5) and (6) apply only to disciplinary actions under Subchapter J. Adopted §213.32(5) addresses disciplinary actions that are typically resolved through remedial education and/or a fine. Adopted §213.32(6) addresses disciplinary actions that are resolved through other disciplinary sanctions, such as Warnings, Reprimands, Suspensions, or Revocations. A fine may be imposed as part of a sanction in a disciplinary action. The provisions of adopted §213.32(5) and (6) will not apply to a fine imposed as part of a corrective action under new Subchapter N and adopted new §213.32(1) - (4). This is an important distinction. The provisions of adopted §213.32(5) and (6) are separate and apart from the adopted provisions of new §213.32(1) - (4). Adopted new §213.32(1) - (4) will apply only to corrective actions under new Subchapter N. Adopted §213.32(5) and (6) will apply only to disciplinary actions under Subchapter J.
The Board originally adopted §213.32 on August 15, 2002, and amended §213.32 on May 17, 2004. While the adopted amendments to §213.32(5) and (6) generally retain the content of the former rule, including the specified types of violations for which administrative fines may be imposed, the amounts of the fines that correspond to the specified types of violations have been revised. At its April, 2008, Board meeting, the Board approved the use of a Disciplinary Matrix (Matrix) in its disciplinary cases to assist the Board in analyzing violations of Chapter 301 and Board policies and rules and imposing consistent and fair sanctions for those violations. The Matrix was published in the May 9, 2008, issue of the Texas Register (33 TexReg 3826), for public comment. Since that time, the Board has utilized the Matrix to analyze an individual's conduct and to determine the appropriate sanction for that conduct. For each violation specified in the Occupations Code §301.452(b), the Matrix contains a corresponding recommended sanction, including the amounts of administrative fines, where appropriate. The amounts of the fines in adopted §213.32 are consistent with the amounts of the fines specified in the Matrix. Prior to the adoption of the amendments to §213.32, the amounts of fines in §213.32 were lower than the amounts of fines specified in the Matrix. This is primarily because §213.32 has not been amended by the Board since 2004. Adopted §213.32(5) and (6) correct any inconsistencies between §213.32 and the Matrix by revising the amounts of the fines in §213.32 to be consistent with the amounts of the fines specified in the Matrix. For the most part, this has been accomplished by increasing the amounts of the fines in §213.32 from $100 to $250 for the first occurrence of a specified violation, and from $200 or $250 to $500 for a subsequent occurrence of a specified violation. These revisions are necessary to ensure the consistent application of Board policy in disciplinary cases, which ultimately results in more fair and efficient regulation. Further, the adopted amendments to §213.32(5) and (6) are authorized under the Occupations Code §§301.453(a), 301.4531, 301.501, and 301.502. The Occupations Code §301.453(a) authorizes the imposition of a fine in a disciplinary case. The Occupations Code §301.501 specifically authorizes the Board to impose an administrative penalty for a violation of Chapter 301 or a rule or order adopted under Chapter 301. The Occupations Code §301.4531(b) and §301.502 require the Board to consider the following factors when determining the appropriate sanction, including the amount of any administrative fine, in a disciplinary case: (i) whether an individual is being disciplined for multiple violations of Chapter 301 or a rule or order adopted under Chapter 301; (ii) whether an individual has previously been the subject of disciplinary action by the Board and has previously complied with Board rules and Chapter 301; (iii) the seriousness of the violation; (iv) the threat or hazard to public safety; (v) the amount necessary to deter a future violation; (vi) efforts made to correct the violation; and (vii) any mitigating factors or other matters that justice may require. The Board has considered these factors in adopting the amounts of the fines in the Board's Matrix and in adopted §213.32(5) and (6). First, the Board has identified specific violations for which a fine may be imposed in a disciplinary case. Second, the Board has established a range of fines for the specified violations. While the range of fines prescribes the minimum and maximum amount of a fine that may be imposed for a specified violation, the range also provides flexibility for the Board to consider mitigating factors and impose a fine within the prescribed range that appropriately accounts for such mitigation. Third, the Board has established the amount of a fine for the first occurrence of a violation and for a subsequent occurrence of the violation. This distinction allows the Board to appropriately consider whether an individual has previously been the subject of disciplinary action by the Board. Fourth, the Board has distinguished the severity of the specified violations by separating the violations into two separate paragraphs: §213.32(5), which addresses violations that may be resolved through remedial education and/or a fine, and §213.32(6), which addresses more serious violations that may be resolved through Warnings, Reprimands, Suspensions, or Revocations. Finally, adopted §213.32(6) addresses situations in which an individual has committed several of the violations specified in adopted §213.32(2) and (5), which allows the Board to appropriately consider the amount of a fine in situations where an individual is being disciplined for multiple violations.
Adopted §213.32(7) is necessary to clarify that the Executive Director is authorized to dispose of the violations specified in adopted §213.32(2) and adopted §213.32(5) without the ratification of the Board. Specifically, the adopted provision authorizes the Executive Director to offer and accept corrective actions under new Subchapter N without the necessity of the Board ratifying those actions. The adopted provision also authorizes the Executive Director to offer and accept disciplinary actions that result in remedial education, with or without a fine, without the necessity of the Board ratifying those actions. While the Executive Director is required to report these cases to the Board during its regularly scheduled meetings, the adopted sections allow the Executive Director to resolve these cases in as quick and efficient manner as possible. This is beneficial to the Board and regulated individuals because it allows individuals to resolve matters with the Board in a faster and more efficient manner.
The remaining adopted amendments are necessary to re-designate the paragraphs and subparagraphs of the adopted section.
HOW THE SECTIONS WILL FUNCTION. The adopted title of §213.32 includes the new subject matter of the section, corrective action proceedings, and corrects a grammatical error. Adopted new §213.32(1) provides that, for purposes of §213.32 only, the term 'corrective action' has the meaning assigned by the Occupations Code §301.651. Further, adopted §213.32(1) states that a corrective action imposed under §213.32 is not a disciplinary action under the Occupations Code Chapter 301 Subchapter J. Adopted §213.32(2) provides that, pursuant to the Occupations Code §301.652, the Board may impose a corrective action for the first occurrence of the following violations: (i) practice on a delinquent license for more than six months but less than one year; (ii) failure to comply with continuing competency requirements; (iii) failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible; (iv) failure to provide employers, potential employers, or the Board with complete and accurate answers to either oral or written questions on subject matters including, but not limited to: employment history, licensure history, and criminal history; (v) failure to comply with Board requirements for change of name/address; (vi) failure to develop, maintain, and implement a peer review plan according to statutory peer review requirements; and (vii) failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area, where the advanced practice registered nurse otherwise meets all requirements for prescriptive authority as specified in 22 TAC Chapter 222 (relating to Advanced Practice Nurses With Prescriptive Authority). Adopted §213.32(3) states that an individual will not be eligible for a corrective action if the individual has committed more than one of the violations listed in adopted new §213.32(2). Further, if a fine is imposed by the Board as part of a corrective action under adopted §213.32(2), adopted new §213.32(3) states that the amount of the fine shall be $500. Adopted §213.32(4) states that the opportunity to enter into an agreed corrective action order is at the sole discretion of the Executive Director and is not available as a result of a contested case proceeding conducted pursuant to the Government Code Chapter 2001. Adopted §213.32(5) provides that a fine, with or without remedial education stipulations, may be imposed in a disciplinary matter for the following violations in the following amounts: (i) failure to comply with continuing competency requirements, $250 for the first occurrence and $500 for a subsequent occurrence; (ii) failure to comply with mandatory reporting requirements, $250 - $500 for the first occurrence and $500 -$1,000 for a subsequent occurrence; (iii) failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible, $250 - $500 for the first occurrence and $500 - $1,000 for a subsequent occurrence; (iv) failure to provide employers, potential employers, or the Board with complete and accurate answers to either oral or written questions on subject matters including but not limited to: employment history, licensure history, criminal history, $250 - $800 for the first occurrence and $500 -$1,000 for a second occurrence; failure to report unauthorized practice, $250 - $500 for the first occurrence and $500 - $1,000 for a subsequent occurrence; (v) failure to comply with Board requirements for change of name/address, $250 for the first occurrence and $300 for a subsequent occurrence; (vi) failure to develop, maintain and implement a peer review plan according to statutory peer review requirements, $250 - $1,000 for the first occurrence and $500 -$1,000 for a subsequent occurrence; (vii) failure to file, or cause to be filed, complete, accurate and timely reports required by Board order, $250 for the first occurrence; failure to make complete and timely compliance with the terms of any stipulation contained in a Board order, $250 for the first occurrence; (viii) failure to report patient abuse to the appropriate authority of the State of Texas, including but not limited to, providing inaccurate or incomplete information when requested from said authorities, $500 for the first occurrence and $1,000 - $5,000 for the second occurrence; and (ix) other non-compliance with the NPA, Board rules or orders which does not involve fraud, deceit, dishonesty, intentional disregard of the NPA, Board rules, Board orders, harm or substantial risk of harm to patients, clients or the public, $250 - $500 for the first occurrence and $500 - $1,000 for a subsequent occurrence. Adopted §213.32(6) provides that the following violations may be appropriate for disposition by fine in conjunction with one or more of the penalties/sanctions contained elsewhere in the Board's rules: (i) violations other than those listed in adopted §213.32(2) and adopted §213.32(5), $250 - $1,000 for the first occurrence and $500 - $1,000 for a subsequent occurrence; and (ii) a cluster of violations listed in adopted §213.32(2) and adopted §213.32(5), $250 - $5,000. Adopted §213.32(7) provides that the Executive Director is authorized to dispose of violations listed in adopted §213.32(2) and adopted §213.32(5) without ratification by the Board. Further, the Executive Director shall report such cases to the Board at its regular meetings.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
§213.32(2) and (3)
Comment: A commenter representing an organization states that proposed §213.32(2) limits corrective action to six violations. The commenter states that his organization does not disagree with initially limiting the violations eligible for corrective action to these six violations, but his organization believes it is premature to state categorically that it is not appropriate for corrective action to be offered in cases where: (i) errors in practice or medication administration have occurred; (ii) an individual's criminal conduct is at issue; (iii) an individual's drug abuse is at issue; or (iv) an individual's physical or mental state is at issue. The commenter states that such a categorical statement would seem to preclude corrective action from ever being considered as potentially applicable to any of these situations. The commenter further states that his organization does not believe that such a categorical statement should be made without any experience with corrective action and how it may work. Further, the commenter states that such a categorical statement seems inconsistent with 22 TAC §217.16 (relating to Reporting of Minor Incidents), which does not require every medication administration error to be reported to the Board. The commenter requests that the preamble to the adopted rule not include such a broad, categorical statement of the types of violations to which corrective action may not be applicable.
The commenter also requests that §213.32(3) be revised to give the Board's Executive Director discretion to take corrective action if a nurse has committed more than one of the six violations listed. The commenter states that the proposed rule makes a nurse ineligible for corrective action if he or she has committed more than one of the six violations listed. Further, while the commenter's organization does not disagree that multiple violations may indicate a more serious disciplinary issue which should be resolved through the disciplinary process, the commenter's organization does not believe that multiple violations necessarily do so. The commenter provides an example where a nurse experiences a dramatic event in her/his life that causes depression, and the nurse subsequently takes time off from nursing for a period of time. Then, the nurse's license comes up for renewal, and the nurse moves during this time and fails both to complete his/her continued competency requirements and to notify the Board of an address change. The commenter provides another example where a nurse receives corrective action for failure to comply with continued competency requirements and then, two years later, fails to notify the Board of a change of address. The commenter states that in neither of these two examples would it appear that the two violations indicate a more serious disciplinary violation. However, under the proposed rule, the commenter states, in both examples the nurses would be ineligible for corrective action. The commenter states that it is within the Board's Executive Director's sole discretion as to whether corrective action is available. The commenter states that his organization does not believe there is any reason to limit this discretion because of multiple violations. Further, the commenter states that if the Board believes that multiple violations should make a nurse ineligible, then the commenter's organization would request that ineligibility be limited to multiple violations of the same type, such as twice failing to notify the Board of a change in address.
Agency Response: The Board declines to make the suggested changes at this time. SB 1415 authorizes certain violations of the Occupations Code Chapter 301 to be resolved through non-disciplinary, corrective actions. A corrective action is confidential and will not be reportable to the public or HIPDB. As a result, members of the public, such as an individual's employer or client, will not be made aware of conduct that results in a corrective action. The Board's mission is to ensure the protection of the public health, safety, and welfare. The Board may not be able to adequately fulfill this duty if violations of a serious nature or multiple, but less significant violations, are not reported to the public and monitored by the Board. As such, the Board has determined that it is necessary to limit the number and types of violations for which a corrective action may be imposed. This is especially true since the Board has not yet had enough time to evaluate the efficacy of issuing corrective actions. As such, the Board is reluctant to permit matters that may result in serious patient harm, such as errors in practice and medication administration; criminal conduct; drug abuse, chemical dependency, and substance abuse; and physical and mental impairment, to be resolved through non-reportable, non-public corrective actions at this time. The Executive Director does not have unfettered discretion to determine when a corrective action is appropriate. Rather, the Executive Director's discretion to offer a corrective action is regulated by the Board, who establishes the types of violations for which a corrective action may be offered. The Board is not convinced that it appropriate to offer a corrective action to an individual who has committed more than one violation of Chapter 301 at this time. The Board is concerned that multiple or repetitive violations of Chapter 301 may be indicative of a more serious pattern of conduct that warrants a more severe sanction than a corrective action. As such, the Board has determined that corrective actions should be reserved for one-time, minor, administrative violations, at this time. The Board may be willing to consider permitting additional types of violations to be resolved through corrective actions at some point in the future. However, the Board finds that it lacks the requisite information to consider such a change at this point in time.
The Eligibility and Disciplinary Advisory Committee
The Eligibility and Disciplinary Advisory Committee (Committee) convened on September 17, 2009 and considered the proposed amendments to §213.32, pertaining to Schedule of Administrative Fine(s) and §211.7, pertaining to Executive Director. Certain members of the Committee expressed concern that the proposed rules were too restrictive and suggested that the Executive Director be given more flexibility in determining which violations could be resolved through a corrective action. Other members of the Committee felt that the requirements were appropriate as proposed and suggested that the Board re-evaluate the requirements after more time had passed. One member of the Committee requested that the Board consider including an advanced practice registered nurse's failure to apply for prescriptive authority in a new role and failure to maintain national certification as violations for which a corrective action could be imposed. Several members of the Committee agreed that there should be a limit as to the violations that would be eligible for a corrective action, but they were unsure of how to determine what that limit should be. Most of the members of the Committee, however, generally expressed confidence in the Board's existing processes for the review and resolution of complaints.
The Board declines to make many of the Committee's suggested modifications to the proposed rule for the reasons set forth previously in this Rule Adoption. However, the Board has determined that an advanced practice registered nurse's failure to apply for prescriptive authority in a new role is appropriate for resolution through a corrective action. This type of violation is administrative in nature and its associated threat of public harm is low. As such, the Board has modified §213.32(2) as adopted to include the failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area as an additional violation that may be resolved through a corrective action.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE PROPOSAL.
For: None.
Against: None.
For, with changes: None.
Neither for nor against, with changes: The Texas Nurses Association.
STATUTORY AUTHORITY. The amendments and new paragraphs are adopted under the Occupations Code §§301.453(a), 301.4531, 301.466(a) and (b), 301.501, 301.502, 301.651 - 301.657, and 301.151. The Occupations Code §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: (1) denial of the person's application for a license, license renewal, or temporary permit; (2) issuance of a written warning; (3) administration of a public reprimand; (4) 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; (5) suspension of the person's license for a period not to exceed five years; (6) revocation of the person's license; or (7) assessment of a fine. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §301.466(a) provides that a complaint and investigation concerning a nurse under Subchapter J and all information and material compiled by the Board in connection with the complaint and investigation are confidential and not subject to disclosure under the Government Chapter 552 and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the Board or a Board employee or agent involved in license holder discipline. The Occupations Code §301.466(b) provides that, notwithstanding §301.466(a), information regarding a complaint and an investigation may be disclosed to: (i) a person involved with the Board in a disciplinary action against the nurse; (ii) a nursing licensing or disciplinary Board in another jurisdiction; (iii) a peer assistance program approved by the Board under the Health and Safety Code Chapter 467; (iv) a law enforcement agency; or (v) a person engaged in bona fide research, if all information identifying a specific individual has been deleted. The Occupations Code §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. The Occupations Code §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. The Occupations Code §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. The Occupations Code §301.651 provides that "corrective action" means a fine or remedial education imposed under §301.652. The Occupations Code §301.652(a) states that the Board may impose a corrective action on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301. The corrective action: (i) may be a fine, remedial education, or any combination of a fine or remedial education; (ii) is not a disciplinary action under Subchapter J; and (iii) is subject to disclosure only to the extent a complaint is subject to disclosure under §301.466. The Occupations Code §301.652(b) authorizes the Board to adopt guidelines for the types of violations for which a corrective action may be imposed. The Occupations Code §301.653 states that, if the Executive Director determines that a person has committed a violation for which a corrective action may be imposed under the guidelines adopted under §301.652(b), the Executive Director may give written notice of the determination and recommendation for corrective action to the person subject to the corrective action. The notice may be given by certified mail. The notice must: (i) include a brief summary of the alleged violation; (ii) state the recommended corrective action; and (iii) inform the person of the person's options in responding to the notice. The Occupations Code §301.654 states that, not later than the 20th day after the date the person receives the notice under §301.653, the person may accept in writing the Executive Director's determination and recommended corrective action or reject the Executive Director's determination and recommended corrective action. The Occupations Code §301.655(a) states that, if the person accepts the Executive Director's determination and satisfies the recommended corrective action, the case is closed. The Occupations Code §301.655(b) states that, if the person does not accept the Executive Director's determination and recommended corrective action as originally proposed or as modified by the Board or fails to respond in a timely manner to the Executive Director's notice as provided by §301.654, the Executive Director shall terminate proceedings under Subchapter N and dispose of the matter as a complaint under Subchapter J. The Occupations Code §301.656 states that the Executive Director shall report periodically to the Board on the corrective actions imposed under Subchapter N, including: (i) the number of corrective actions imposed; (ii) the types of violations for which corrective actions were imposed; and (iii) whether affected nurses accepted the corrective actions. The Occupations Code §301.657(a) states that, except to the extent provided by §301.657, a person's acceptance of a corrective action under Subchapter N does not constitute an admission of a violation but does constitute a plea of nolo contendere. The Occupations Code §301.657(b) provides that the Board may treat a person's acceptance of corrective action as an admission of a violation if the Board imposes a sanction on the person for a subsequent violation of Chapter 301 or a rule or order adopted under Chapter 301. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing.
§213.32.Corrective Action Proceedings and Schedule of Administrative Fines.
A corrective action may be imposed by the Board as specified in the following circumstances.
(1) For purposes of this section only, corrective action has the meaning assigned by the Occupations Code §301.651. A corrective action imposed under this section is not a disciplinary action under the Occupations Code Chapter 301, Subchapter J.
(2) Pursuant to the Occupations Code §301.652, the Board may impose a corrective action for the first occurrence of each of the following violations:
(A) practice on a delinquent license for more than six months but less than one year;
(B) failure to comply with continuing competency requirements;
(C) failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible;
(D) failure to provide employers, potential employers, or the Board with complete and accurate answers to either oral or written questions on subject matters including, but not limited to: employment history, licensure history, and criminal history;
(E) failure to comply with Board requirements for change of name/address;
(F) failure to develop, maintain, and implement a peer review plan according to statutory peer review requirements; and
(G) failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area, where the advanced practice registered nurse otherwise meets all requirements for prescriptive authority as specified in Chapter 222 of this title (relating to Advanced Practice Nurses With Prescriptive Authority).
(3) An individual will not be eligible for a corrective action if the individual has committed more than one of the violations listed in paragraph (2) of this section. If a fine is imposed by the Board as part of a corrective action under paragraph (2) of this section, the amount of the fine shall be $500.
(4) The opportunity to enter into an agreed corrective action order is at the sole discretion of the Executive Director and is not available as a result of a contested case proceeding conducted pursuant to the Government Code Chapter 2001.
(5) A fine, with or without remedial education stipulations, may be imposed in a disciplinary matter for the following violations in the following amounts:
(A) practice on a delinquent license for more than six months but less than two years:
(i) first occurrence: $250;
(ii) subsequent occurrence: $500;
(B) practice on a delinquent license for two to four years:
(i) first occurrence: $500;
(ii) subsequent occurrence: $1,000;
(C) practice on a delinquent license more than four years: $1,000 plus $250 for each year over four years;
(D) failure to comply with continuing competency requirements:
(i) first occurrence: $250;
(ii) subsequent occurrence: $500;
(E) failure to comply with mandatory reporting requirements:
(i) first occurrence: $250 - $500;
(ii) subsequent occurrence: $500 - $1,000;
(F) failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible:
(i) first occurrence: $250 - $500;
(ii) subsequent occurrence: $500 - $1,000;
(G) failure to provide employers, potential employers, or the Board with complete and accurate answers to either oral or written questions on subject matters including but not limited to: employment history, licensure history, criminal history:
(i) first occurrence: $250 - $800;
(ii) second occurrence: $500 - $1000;
(H) failure to report unauthorized practice:
(i) first occurrence: $250 - $500;
(ii) subsequent occurrence: $500 - $1,000;
(I) failure to comply with Board requirements for change of name/address:
(i) first occurrence: $250;
(ii) subsequent occurrence: $300;
(J) failure to develop, maintain and implement a peer review plan according to statutory peer review requirements:
(i) first occurrence: $250 - $1,000;
(ii) subsequent occurrence: $500 - $1,000;
(K) failure to file, or cause to be filed, complete, accurate and timely reports required by Board order: $250 for first occurrence;
(L) failure to make complete and timely compliance with the terms of any stipulation contained in a Board order: $250 for first occurrence;
(M) failure to report patient abuse to the appropriate authority of the State of Texas, including but not limited to, providing inaccurate or incomplete information when requested from said authorities:
(i) first occurrence: $500;
(ii) second occurrence: $1000 - $5000; and
(N) other non-compliance with the NPA, Board rules or orders which does not involve fraud, deceit, dishonesty, intentional disregard of the NPA, Board rules, Board orders, harm or substantial risk of harm to patients, clients or the public:
(i) first occurrence: $250 - $500;
(ii) subsequent occurrence: $500 - $1,000.
(6) The following violations may be appropriate for disposition by fine in conjunction with one or more of the penalties/sanctions contained elsewhere in the Board's rules:
(A) violations other than those listed in paragraphs (2) and (5) of this section:
(i) first occurrence: $250 - $1,000;
(ii) subsequent occurrence: $500 - $1,000; and
(B) a cluster of violations listed in paragraphs (2) and (5) of this section: $250 - $5,000.
(7) The executive director is authorized to dispose of violations listed in paragraphs (2) and (5) of this section without ratification by the Board. The executive director shall report such cases to the Board at its regular meetings.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 26, 2009.
TRD-200904841
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: September 4, 2009
For further information, please call: (512) 305-6822
CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS
The Texas Real Estate Commission (TREC) adopts amendments to §537.30, Standard Contract Form TREC No. 23-9 (New Home Contract (Incomplete Construction)) and §537.31, Standard Contract Form TREC No. 24-9 (New Home Contract (Complete Construction)) without changes to the proposed text as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6278), and will not be republished. The amendments eliminate from the new home contracts provisions required by the Texas Residential Construction Commission Act (Title 16 of the Texas Property Code) that are no longer appropriate after the September 1, 2009, expiration of the Act. In §537.30 and §537.31, Standard Contract Forms TREC Nos. 23-9 and 24-9 are amended to delete from Paragraph 22 the references to the Addendum Containing Required Notices under §§5.016, 420.001 and 420.002, Texas Property Code, which is being repealed. These amendments were adopted on an emergency basis at the August 17, 2009, commission meeting, as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6202).
The reasoned justification for the amendments as adopted is consistency between state law and the TREC-promulgated contract forms.
No comments were received regarding adoption of the amendments.
The amendments are adopted under Texas Occupations Code, §1101.155, which authorizes the Texas Real Estate Commission to adopt rules in the public's best interest that require license holders to use contract forms prepared by the Texas Real Estate Broker-Lawyer Committee and adopted by the commission.
The statute affected by this adoption is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the adopted amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 21, 2009.
TRD-200904804
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: December 1, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3926
The Texas Real Estate Commission (TREC) adopts the repeal of §537.50, Standard Contract Form TREC No. 43-0 (Addendum Containing Required Notices under §§5.016, 420.001 and 420.002, Texas Property Code), without changes to the proposal as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6278), and will not be republished. The repeal of §537.50, Standard Contract Form TREC No. 43-0, repeals the Addendum Containing Required Notices Under §§5.016, 420.001 and 420.002, Texas Property Code, which is longer required to be provided to buyers of new homes. This repeal was adopted on an emergency basis at the August 17, 2009, commission meeting, as published in the September 11, 2009, issue of the Texas Register (34 TexReg 6202).
The reasoned justification for the repeal as adopted is consistency between state law and the TREC-promulgated contract forms.
No comments were received regarding adoption of the repeal.
The repeal is adopted under Texas Occupations Code, §1101.155, which authorizes the Texas Real Estate Commission to adopt rules in the public's best interest that require license holders to use contract forms prepared by the Texas Real Estate Broker-Lawyer Committee and adopted by the commission.
The statute affected by this repeal is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the adopted repeal.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 21, 2009.
TRD-200904805
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective date: December 1, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3926