PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS
CHAPTER 5. INTERIOR DESIGNERS
SUBCHAPTER A. SCOPE; DEFINITIONS
The Texas Board of Architectural Examiners proposes an amendment to §5.5, pertaining to definitions. The amendment implements recent legislation which changed the title restriction upon the use of the professional title "interior designer" to "registered interior designer". The amendment also changes the definition of the term "FIDER" to reflect the name change of the Foundation of Interior Design Education Research to the Council for Interior Design Accreditation (CIDA) and to note that FIDER is a predecessor to CIDA. The amendments will clarify rules to reflect current legal requirements and accurately identify the organization which accredits interior design education programs.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact on state or local government.
Ms. Hendricks has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: the definition of delinquent registration status will accurately reflect the professional title which a delinquent registrant may not use and the definition of the term "FIDER" will give notice of the change of that organization's name. The public will benefit from the inclusion of accurate and current information in the rules of the board. The rule will have no impact on small or micro business. Therefore, consideration of a less costly alternative proposal is not required.
There will be no change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment to this rule is proposed pursuant to §1051.202, Texas Occupations Code, which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to the administration of Chapter 1053, Texas Occupations Code, relating to the practice of interior design.
The proposed amendment to this rule does not affect any other statutes.
§5.5.Terms Defined Herein.
The following words, terms, and acronyms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) - (17) (No change.)
(18) Delinquent--A registration status signifying that an Interior Designer
(A) has failed to remit the applicable renewal fee to the Board and
(B) is no longer authorized to use the title "registered
interior designer" [or the term "interior design"]
in Texas.
(19) - (23) (No change.)
(24) FIDER--Foundation for Interior Design Education Research. A predecessor to the Council for Interior Design Accreditation (CIDA).
(25) Foundation for Interior Design Education Research (FIDER)--An agency that sets standards for postsecondary interior design education and evaluates college and university interior design programs. A predecessor to the Council for Interior Design Accreditation (CIDA).
(26) - (60) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 2009.
TRD-200903684
Cathy L. Hendricks
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes an amendment to §5.131, pertaining to compliance and enforcement. The rule is amended to conform to recent legislative changes to restrictions upon the use of the professional title "interior designer." As amended the rule reflects the change to a restriction upon the use of the title "registered interior designer."
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact upon state or local government.
Ms. Hendricks has determined that for the first five-year period the amended rule is in effect the public benefit expected as a result of the amended rule is as follows: the rule will accurate reflect the statutory restrictions upon the use of the title "registered interior designer" and will not create the incorrect impression that the use of the professional title "interior designer" is restricted to those who are registered by the board as interior designers. The rule will have no impact on small or micro business. Therefore an analysis of a less costly alternative to the amendment is not required.
There will be no change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment to this rule is proposed pursuant to §1051.202, Texas Occupations Code, and §1053.151, Texas Occupations Code, which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to the administration of chapter 1053, Texas Occupations Code, regulating the practice of interior design and which restricts usage of the title "registered interior designer" to persons registered with the board as interior designers.
The proposed amendment to this rule does not affect any other statutes.
§5.131.General.
In carrying out its responsibility to insure strict enforcement
of the Interior Designers' Registration Law (the Act), the Board may
investigate circumstances which appear to violate or abridge the requirements
of the Act or the rules dealing with the practice of interior design
and the use of the title "registered interior designer."[
and the term "interior design."] Violations of the Act
or the rules which cannot be readily resolved through settlement shall
be disposed of by administrative, civil, or criminal proceedings as
authorized by law.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 2009.
TRD-200903685
Cathy L. Hendricks
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.133 and §5.134 of Chapter 5, Subchapter G, Title 22, pertaining to professional titles and registration of interior design businesses. The amendments implement recent legislative changes to restrictions upon the use of the professional title "interior designer." As amended, the statutes restrict the title "registered interior designer." The amendments also implement recent changes in the law by striking prohibitions upon the use of the term "interior design."
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact upon state or local government.
Ms. Hendricks has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: the rules will accurately reflect and implement the law as it currently exists. The public will benefit by referring to the laws accurately. The rule will have no impact on small or micro business. No analysis of less costly alternatives is required.
There will be no change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment to this rule is proposed pursuant to §1051.202 and §1053.151, Texas Occupations Code, which provide the Texas Board of Architectural Examiners with authority to promulgate rules, including rules related to restrictions upon the use of the title "registered interior designer".
The proposed amendment to this rule does not affect any other statutes.
§5.133.Titles.
(a) Interior Designers duly registered in Texas are
authorized to use the title "registered interior designer"
to describe themselves [and use the term "interior design" to
describe services they offer and perform in Texas].
(b) A firm, partnership, corporation, or other business
association may use the title "registered interior designer"
[or the term "interior design" in its name or to describe services
it offers or performs in Texas] only under the following conditions:
(1) The business employs at least one Interior Designer
on a full-time basis or associates with at least one Interior Designer
pursuant to the provisions of § [section]
5.132; and
(2) The Interior Designer(s) employed by or associated
with the business pursuant to paragraph (1) of this subsection [
subsection (b)(1) of this section] exercise Supervision and
Control over all interior design services performed by nonregistrants
on behalf of the business.
(c) No entity other than those qualified under subsections
(a) and (b) of this section may use the title "registered interior
designer" [or the term "interior design"
] in its name [or to describe services it offers or performs in Texas].
(d) (No change.)
§5.134.Business Registration.
(a) A Principal for an Interior Design firm or other
business entity that uses the title "registered interior
designer" [or the term "interior design"
] to describe itself [or a service it offers or performs in Texas
] must annually register information regarding the firm or business entity with the
Board.
(b) (No change.)
(c) If a business entity or association dissolves or
otherwise becomes unable to lawfully use the title "
registered interior designer" [
or the term "interior design"] to describe itself
[or its services
], the Interior Designer or Principal who
last registered the business entity or association shall so notify
the Board in writing. Such notification must be postmarked or otherwise
provided within thirty (30) days of the date of dissolution or the
date the business entity or association became unable to lawfully
use the title "registered interior designer" [and
the term "interior design"]. A business entity or association
may not continue to use the title " registered interior
designer" [or the term "interior design"] unless another
Interior Designer or Principal files information with the Board identifying
himself or herself as the Principal for the business entity or association
within that thirty (30) day period.
(d) - (e) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 2009.
TRD-200903686
Cathy L. Hendricks
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes an amendment to §7.10(b), pertaining to fees charged by the board. The proposed amendment eliminates a specified fee for registration examinations and includes a statement that the fees are set by examination providers under contract with the board. The examination providers have modified fees to apply to each section of the examination and in some cases created graduated fee schedules. As a result, a single specified fee in the board's fee schedule is not accurate. The amendments impose a $5 fee for issuing replacement pocket cards (cards that serve as evidence of registration) to registrants in order to recover agency costs and eliminate an obsolete administrative fee for review of the Landscape Architectural Registration Examination.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be a fiscal impact to the state in that the board, a state agency, will recover costs that it currently incurs. The board estimates in the first year the rule amendment is in effect it will recover $7800 in the cost of administering the creation and issuance of 1560 replacement pocket cards. The board anticipates the charge for replacement cards will serve as a deterrent to misplacing or replacing cards and therefore estimates it will incur and recover costs in the amount of $3700 in the second year, $2000 in the third, and $1000 in the third, fourth and fifth years the rule is in effect. Payments of examination fees are paid by the examinees directly to the examination provider. There will be no fiscal impact to the state arising from the modification to the fee schedule regarding examination fees. There will be no cost or fiscal impact upon local government.
Ms. Hendricks has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: The agency will recover the cost of producing and distributing replacement pocket cards to registrants whose original cards are lost or destroyed. The cost to each registrant who obtains a replacement card will be $5 per card. However, registrants are not required to possess a pocket card or to replace a missing pocket card. This is a discretionary expense to registrants. Clarifying the rule to eliminate obsolete and inaccurate fees will serve a public benefit in that the rule will have the benefit of providing correct information to registrants and other who may refer to the rule for fee information. The rule will have no impact on small or micro business. Therefore, there is no need to consider less costly alternatives to the amendment.
There will be an increase in the cost to persons who obtain replacement pocket cards. The Board currently bears the cost of replacing pocket cards. The amendment would transfer that cost to registrants who obtain replacement cards.
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment to this rule is proposed pursuant to §§1051.651, 1052.054 and 1053.052, Texas Occupations Code Annotated, which provide the Texas Board of Architectural Examiners with authority to set fees reasonable and necessary to cover the costs of administering laws relating to the regulation of architecture, landscape architecture and interior design, respectively.
The proposed amendment to this rule does not affect any other statutes.
§7.10.General Fees.
(a) (No change.)
(b) The [Effective September 1, 2008, the
] following fees shall apply to services provided by the
Board in addition to any fee established elsewhere by the rules and
regulations of the Board or by Texas law:
(c) - (f) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 2009.
TRD-200903687
Cathy L. Hendricks
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8544
CHAPTER 211. GENERAL PROVISIONS
The Texas Board of Nursing (Board) proposes amendments to §211.7, concerning Executive Director. The Board is simultaneously proposing amendments and new paragraphs to §213.32, concerning Practice and Procedure. These proposed amendments and new paragraphs 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. The proposed changes to §213.32 are also published in this edition of the Texas Register. The proposed amendments to §211.7 are necessary for consistency with the proposed changes to §213.32.
The Board is proposing amended §213.32(7) to clarify that the Executive Director is authorized to dispose of the violations specified in proposed new §213.32(2) and proposed amended §213.32(5) without the ratification of the Board. Proposed amended §213.32(7) also requires the Executive Director to report such cases to the Board at its regular meetings. The types of violations specified in proposed new §213.32(2) and proposed amended §213.32(5) are appropriate for disposition through a fine and/or remedial education. Generally, such cases are of a fairly minor nature and do not result in harm to the public. As a result, these cases do not necessarily need to be reviewed and deliberated on by the Board. Instead, the provisions of proposed amended §213.32(7) allow the Executive Director to resolve these cases pursuant to established Board policies, rules, procedures, and requirements. This is beneficial to the Board because it reduces the number of Board Orders that must be reviewed and ratified by the Board. It is also beneficial to individuals receiving these types of orders because it allows the individual to resolve the matter in a more efficient manner.
The proposed amendments to §211.7(f)(1) are necessary for consistency with proposed amended §213.32(7). Under proposed amended §213.32(7), the Executive Director is authorized to dispose of the specified violations in proposed new §213.32(2) and proposed amended §213.32(5) through a fine and/or remedial education, without the ratification of the Board. The Executive Director is also required to report such cases to the Board at its regular meetings. These proposed provisions are similar to the existing provisions in §211.7(f). However, proposed new §213.32(2) specifies six new violations for which the Board may offer an individual a corrective action. A corrective action under the Occupations Code Subchapter N is a non-disciplinary action consisting of a fine, remedial education, or any combination of a fine and remedial education. Proposed amended §213.32(7) permits the Executive Director to dispose of a violation for which a corrective action is imposed, without Board ratification. Proposed amended §213.32(5) specifies the violations for which a fine and/or remedial education may be imposed by the Board in a disciplinary action. Proposed amended §213.32(7) permits the Executive Director to dispose of a violation specified in proposed amended §213.32(5), for which a fine and/or remedial education is imposed, without Board ratification. Although the specified violations in proposed new §213.32(2) and proposed amended §213.32(5) are similar to the violations specified in existing §211.7(f), they are not exactly the same. Further, existing §211.7(f) does 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 existing §211.7(f) apply only to disciplinary actions. The proposed amendments to §211.7(f) eliminate the listed violations in existing subparagraphs (A) - (M) and replace the listing with a reference to proposed new §213.32(2) and proposed amended §213.32(5). In this way, the provisions of proposed amended §211.7(f) will apply to both corrective actions and disciplinary actions in which the Board imposes a fine and/or remedial education. Further, proposed amended §211.7(f) makes clear that the Executive Director may accept an order issued under proposed new §213.32(2) and proposed amended §213.32(5) without Board ratification. These proposed amendments are consistent with the proposed amended and new provisions of §213.32. Finally, proposed new §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 proposed amended §213.32(7).
The following is a section-by-section overview of the proposal. Proposed amended §211.7(f)(1) provides that the Executive Director of the Board is authorized to accept orders issued under §213.32(2) and (5) on behalf of the Board and ratification of the Board is not necessary. Further, proposed amended §211.7(f)(1) provides that the Executive Director is required to report summaries of dispositions to the Board at its regular meetings.
Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There will be no anticipated effect on local employment or the local economy as a result of the proposal.
Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefits will be: (i) the implementation of the requirements of SB 1415; (ii) more efficient resolution of cases before the Board; and (iii) proper delegation of authority to the Executive Director, which results in more efficient regulation by the Board. There are no anticipated economic costs to persons who are required to comply with the proposal.
As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person who is required to comply with the proposed amendments.
The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 30 days from the date of publication in the Texas Register to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
The amendments are proposed 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.
The following statutes are affected by this proposal:
Section 211.7 - Occupations Code §§301.453, 301.4531, 301.501, 301.502, 301.651 - 301.657, and 301.151.
§211.7.Executive Director.
(a) - (e) (No change).
(f) The Executive Director is authorized to accept the following orders on behalf of the Board and ratification by the Board is not necessary. The Executive Director will report summaries of dispositions to the Board at its regular meetings.
(1) Orders issued under §213.32(2) and (5)
of this title (relating to Corrective Action Proceedings and Schedule
of Administrative Fines). [consisting of a fine and/or
education stipulations. The following violations may be appropriate
for disposition by fine with or without educational stipulations:]
[(A) practice on a delinquent license
for more than six months but less than two years;]
[(B) practice on a delinquent license
for two to four years;]
[(C) practice on a delinquent license
over four years;]
[(D) aiding, abetting or permitting
a nurse to practice on a delinquent license;]
[(E) failure to comply with CE requirements;]
[(F) failure to comply with mandatory
reporting requirements;]
[(G) failure to assure licensure/credentials
of personnel for whom the nurse is administratively responsible;]
[(H) failure to provide employers,
potential employers or the Board with complete and accurate answers
to specific questions regarding employment or background (e.g., presenting
incomplete employment history);]
[(I) failure to report unauthorized practice;]
[(J) failure to comply with Board requirements
for change of name/address;]
[(K) failure to develop, maintain and
implement a peer review plan according to statutory peer review requirements;]
[(L) failure to file, or cause to be
filed, complete, accurate and timely reports required by Board Order; and]
[(M) failure to make complete and timely
compliance with the terms of any stipulation contained in a Board
Order.]
(2) (No change).
(g) (No change).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 24, 2009.
TRD-200903711
James W. Johnston
General Counsel
Texas Board of Nursing
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-6811
The Texas Board of Nursing (Board) proposes amendments and new paragraphs to §213.32, concerning Schedule of Administrative Fine(s). Proposed new §213.32(1) - (4) are 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. The Board is proposing the remaining amendments under the Occupations Code §§301.453(a), 301.4531, 301.501, 301.502, and 301.151 to revise and clarify the amount of administrative fines that may be imposed upon an individual in a disciplinary action.
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 allow 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 and 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 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. Proposed 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 a 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) prohibiting an individual from receiving a corrective action as the result of a contested case proceeding conducted under the Government Code Chapter 2001.
Proposed 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 proposed 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 new §213.32(2) - (4) are being proposed in order to establish the specific procedures and requirements that will apply to a corrective action proceeding under new Subchapter N. Proposed new §213.32(2) specifies six 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 an individual's clients, 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 on duty 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 proposing new §213.32(2), which specifies six minor, administrative violations that may be resolved through corrective action proceedings. These specified violations are typically minor in nature and do not involve harm to the public. As such, the Board believes that these types of violations may be safely resolved through a corrective action proceeding. Proposed 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 proposed 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.
Proposed 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 proposed new §213.32(2). Like the provision in proposed new §213.32(2), this proposed 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 proposed 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 is proposing that the amount of any fine imposed as part of a corrective action under new Subchapter N be $500. The Board has considered the following factors in determining the amount of this proposed 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 proposed new §213.32(2) are typically less serious than the 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, proposed new §213.32(4) is necessary to clarify that the Executive Director of the Board has the sole discretion to offer an individual a corrective action under new Subchapter N. Proposed 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 proposed new §213.32(4) are consistent with these new statutory sections. First, proposed 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. Proposed 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 amendments are necessary to revise and clarify the amount of administrative fines that may be imposed upon an individual in a disciplinary action. The provisions of proposed amended §213.32(5) and (6) apply only to disciplinary actions under Subchapter J. Proposed amended §213.32(5) addresses disciplinary actions that are typically resolved through remedial education and/or a fine. Proposed amended §213.32(6) addresses disciplinary actions that are resolved through other sanctions, such as Warnings, Reprimands, Suspensions, or Revocations. Fines may also be imposed as part of the sanctions in these disciplinary actions. The provisions of proposed amended §213.32(5) and (6) will not apply to a fine imposed as part of a corrective action under new Subchapter N and proposed new §213.32(1) - (4). This is an important distinction. The provisions of proposed amended §213.32(5) and (6) are separate and apart from the proposed provisions of new §213.32(1) - (4). Proposed new §213.32(1) - (4) will apply only to corrective actions under new Subchapter N. Proposed amended §213.32(5) and (6) will apply only to disciplinary actions under Subchapter J. The Board originally adopted existing §213.32 on August 15, 2002, and amended it on May 17, 2004. While the proposed amendments to §213.32(5) and (6) generally retains the content of the existing 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 amount of an administrative fine where appropriate. The amounts of the fines in existing §213.32 are being proposed for amendment in order to achieve consistency with the amount of the fines specified in the Matrix. Generally, the existing amounts of fines in §213.32 are lower than the amounts of fines specified in the Matrix. This is primarily because existing §213.32 has not been amended by the Board since 2004. Proposed amended §213.32(5) and (6) are intended to correct any inconsistencies between existing §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 can be accomplished by increasing the amounts of the fines in existing §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 proposed revisions are necessary to ensure the consistent application of Board policy in disciplinary cases, which ultimately results in fairer and more efficient regulation. Further, the proposed 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 specifying the amounts of the fines in the Board's Matrix and in proposed amended §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. 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. Fourth, the Board has distinguished the severity of the specified violations by separating the violations into two separate subparagraphs. Proposed amended §213.32(5) addresses violations that may be resolved through remedial education and/or a fine while proposed amended §213.32(6) addresses more serious violations that may be resolved through sanctions other than remedial education, such as Warnings, Reprimands, Suspensions, or Revocations. Typically, proposed amended §213.32(6) addresses conduct that carries a greater risk of public harm than the violations addressed by proposed amended §213.32(5). The Board may also impose fines for the violations specified in proposed amended §213.32(6). Finally, proposed §213.32(6) addresses situations in which an individual commits several of the violations specified in proposed amended §213.32(2) and proposed amended §213.32(5).
Proposed amended §213.32(7) is necessary to clarify that the Executive Director is authorized to dispose of the violations specified in proposed new §213.32(2) and proposed amended §213.32(5) without the ratification of the Board. Specifically, the proposed 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 proposed 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 matters to the Board during its regularly scheduled meetings, the proposal allows the Executive Director to resolve these cases in as quick and efficient manner as possible. This is beneficial to the Board because it reduces the number of corrective action orders and disciplinary orders that must be reviewed and ratified by the Board. It is beneficial to regulated individuals, as well, because it allows the individuals to resolve matters with the Board in a faster and more efficient manner.
The remaining amendments are necessary to re-designate the paragraphs and subparagraphs of the amended section accordingly.
The following is a section-by-section overview of the proposal. The title of §213.32 is being proposed for amendment in order to include the new subject matter of the section, corrective action proceedings, and to correct a grammatical error. Proposed new §213.32(1) provides that, for purposes of §213.32 only, corrective action has the meaning assigned by the Occupations Code §301.651. Further, proposed new §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. Proposed new §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; and (vi) failure to develop, maintain, and implement a peer review plan according to statutory peer review requirements. Proposed new §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 proposed new §213.32(2). Further, if a fine is imposed by the Board as part of a corrective action under proposed new §213.32(2), proposed new §213.32(3) states that the amount of the fine shall be $500. Proposed new §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. Proposed amended §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. Proposed amended §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 proposed new §213.32(2) and proposed amended §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 proposed new §213.32(2) and proposed amended §213.32(5), $250 - $5,000. Proposed amended §213.32(7) provides that the Executive Director is authorized to dispose of violations listed in proposed new §213.32(2) and proposed amended §213.32(5) without ratification by the Board. Further, the Executive Director shall report such cases to the Board at its regular meetings.
Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments and new paragraphs are in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
Ms. Thomas has also determined that for each year of the first five years the proposed amendments and new paragraphs are in effect, there will be public benefits, and there will be potential costs for individuals required to comply with the proposal.
The anticipated public benefits will be the adoption of requirements that: (i) implement SB 1415; (ii) provide individuals with an additional option for resolving violations of Chapter 301 and Board policy and rule; (iii) promote consistency with the provisions of the Board's Disciplinary Matrix; and (iii) ensure the protection of the public health, safety, and welfare. First, SB 1415 and the proposed amendments and new paragraphs provide individuals with an opportunity to resolve certain violations of Chapter 301 and Board policy and rule through a non-disciplinary action. This new option is beneficial to both the Board and individuals regulated under Chapter 301. Under SB 1415 and the proposed amendments and new paragraphs, individuals will be able to resolve minor, administrative violations of Chapter 301 and Board policy and rule through a corrective action proceeding. This is beneficial to regulated individuals because a corrective action proceeding is not reported to the public or HIPDB. As long as an individual satisfies the conditions of the corrective action, the corrective action will not be reported as part of the individual's disciplinary history. Prior to the enactment of SB 1415, an individual that committed a violation of Chapter 301 or Board policy or rule was limited to resolving the matter through a disciplinary action, even in situations where the violation resulted in remedial education or a fine. Further, all disciplinary actions are reported by the Board to the public and HIPDB, regardless of the severity of the violation. The Board believes that serious violations warrant such reporting and monitoring. However, the Board recognizes that some minor violations do not. As a result, proposed new §213.32(2) specifies the types of violations for which a corrective action may be imposed. These violations are of a minor nature and have a low risk of harm to the public. The Board has also proposed additional safeguards to ensure that individuals who have committed multiple violations are not eligible to receive a corrective action. These safeguards are necessary to protect the public from patterns of repeated conduct that could result in harm. In this way, the proposed amendments strike an appropriate balance between the private interests of regulated individuals and the protection of the public health, safety, and welfare. Second, the proposed amendments promote consistency in the Board's disciplinary policies, procedures, and requirements. The provisions of proposed amended §213.32(5) and (6) apply to disciplinary actions under Subchapter J. Specifically, these provisions identify the amount of fines that may be imposed for a specific violation in a disciplinary action. These amendments are necessary to ensure that the amounts of fines in §213.32 are consistent with the amounts of fines specified in the Board's Disciplinary Matrix. Consistency among Board disciplinary policies, procedures, and requirements results in fair and efficient regulation, which benefits regulated individuals, as well as the public at large.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposal permits the Board to offer an individual a corrective action to resolve certain violations of Chapter 301 and Board policy and rule. The proposal also prescribes the requirements that an individual must meet in order to be eligible to receive a corrective action. The proposal also sets the amount of the fine that may be imposed as part of a corrective action and revises the amounts of the fines that may be imposed in a disciplinary action. Not every licensee or individual regulated under Chapter 301 will be subject to the proposal. Only those individuals who commit violations of Chapter 301 and Board policy and rule will be affected by the proposal. The proposal will have no effect on individuals who do not commit violations of Chapter 301 and Board policy and rule. There will be associated costs of compliance with the proposal, however, for those individuals who commit violations of Chapter 301 and Board policy and rule. The probable costs associated with the proposed amendments and new paragraphs result from proposed new §213.32(2) and (3) and proposed amended §213.32(5) and (6).
Proposed new §213.32(2) identifies the violations that may be resolved through a corrective action proceeding. SB 1415 provides that a corrective action may consist of remedial education, a fine, or any combination of remedial education and a fine. Proposed new §213.32(3) provides that the amount of a fine imposed as part of a corrective action will be $500. The probable compliance costs associated with new §213.23(2) and (3) may vary among individuals depending upon several factors, including: (i) the violation that was committed by the individual; (ii) whether remedial education, a fine, or remedial education and a fine is imposed upon the individual as part of the corrective action; and (iii) the type of remedial education, if any, that is imposed upon the individual as part of the corrective action. The type of remedial education that may imposed by the Board in a particular case will vary based upon the type of violation that was committed by the individual. The purpose of remedial education is to provide additional instruction to an individual regarding a particular area of deficiency. For the violations specified in proposed amended §213.21(2), for example, a Nursing Jurisprudence and Ethics Course or a Critical Thinking Course may be appropriate. The remedial education courses are offered by approved third party providers. The costs associated with a particular remedial education course will vary from provider to provider. The Board does not require an individual to enroll in a particular provider's course. Rather, the Board requires that an individual complete a specified remedial education course sponsored by any approved provider. As such, each individual is free to choose the most efficient and economical manner of completing a required remedial education course. For those individuals that are required to complete a remedial education course as part of a corrective action under new Subchapter N, the Board estimates the costs of compliance to range between $185 - $300. This estimate is based upon the following factors. The Board collected a sampling of common remedial education courses currently being offered by various approved providers. Based upon the information received by the Board during its sampling, the Board estimates that a Nursing Jurisprudence and Ethics course will cost between $185 - $250; a documentation course will cost between $200 - $300; and a critical thinking course will cost between $200 - $300. The cost of a particular course, however, will vary based upon the following factors: (i) the geographical location of the individual; (ii) the availability of instructors; (iii) the availability of facilities; and (iv) whether an individual will be required to travel to a different location in order to attend a certain course. Each individual, however, has the information necessary to estimate his or her own compliance costs. Proposed new §213.32(3) also provides that the amount of a fine imposed as part of a correction action will be $500. An individual is not eligible to receive a corrective action under the proposed amendments and new sections if the individual has committed one of the specified violations more than once, or has committed more than one of the specified violations. As such, the Board estimates that any fine that is imposed on an individual as part of a corrective action will not exceed $500. Each individual, however, has the information necessary to estimate his or her own compliance costs.
Proposed amended §213.32(5) revises the amounts of the fines that may be imposed in disciplinary actions. Further, proposed amended §213.32(5) makes clear that a fine may be imposed in a disciplinary action, with or without the additional imposition of a remedial education course. Proposed amended §213.32(5) applies only to disciplinary actions in which a fine and/or remedial education is the appropriate sanction. The probable costs of compliance with §213.32(5) may vary among individuals, based upon the following factors: (i) the particular violation committed by the individual; (ii) whether the individual has committed the violation previously; (iii) and whether the Board imposes a fine or a fine and remedial education upon the individual. The probable estimated costs associated with completing a remedial education course as part of a corrective action under proposed new §213.32(2) have already been addressed in the foregoing paragraphs of this Public Benefit/Cost note. The probable estimated costs of completing a remedial education course as part of a disciplinary action under proposed amended §213.32(5) are estimated to be the same as the costs of completing a remedial education course as part of a corrective action under proposed new §213.32(2). This is because the Board anticipates that the same types of remedial education courses will be imposed upon an individual for one of the violations specified in proposed amended §213.32(5) as will be imposed upon an individual for one of the violations specified in proposed new §213.32(2). The types of violations specified in proposed new §213.32(2) and proposed amended §213.32(5) are similar in nature. As a result, the same remedial education courses should be appropriate to address an individual's deficiencies in these similar areas. The amount of the fines that are being proposed to apply to a disciplinary action in amended §213.32(5), however, differ from the amount of the fine that is being proposed to apply to a corrective action in new §213.32(3). The Board estimates that the probable compliance costs associated with a fine imposed under proposed amended §213.32(5) will range between $250 - $5,000. The amount of the fine may vary among individuals, however, based upon the following factors: (i) the particular violation for which the fine is being imposed; (ii) whether the individual has committed the violation more than once; (iii) the seriousness of the violation; (iv) the amount necessary to deter the conduct; (v) the potential harm to the public health, safety, and welfare; (vi) efforts made to correct the violation; and (vii) any mitigating factors or other matters that justice may require. Each individual, however, has the information necessary to estimate his or her own compliance costs.
Proposed amended §213.32(6) also revises the amounts of the fines that may be imposed in disciplinary actions. However, proposed amended §213.32(6) applies to disciplinary actions in which a sanction other than remedial education is imposed upon an individual. Typically, such sanctions include Warnings, Reprimands, Suspensions, and Revocations. Proposed amended §213.32(6) also provides that a fine may be imposed in conjunction with an appropriate sanction. The probable costs of compliance with §213.32(6) may vary among individuals, based upon the following factors: (i) the particular violation committed by an individual; (ii) whether the individual has committed the violation previously; (iii) whether the Board imposes a fine or a fine and remedial education as part of the sanction imposed upon the individual. For those individuals who are required to complete a remedial education course as part of an imposed sanction, the Board estimates the costs of compliance to range between $185 - $1,000. The probable estimated costs associated with completing a remedial education course as part of a corrective action under proposed new §213.32(2) have already been addressed in the foregoing paragraphs of this Public Benefit/Cost note. The probable estimated costs of completing a remedial education course in Nursing Jurisprudence and Ethics, documentation, or critical thinking as part of a corrective action under proposed new §213.32(2) are estimated to be the same as the estimated costs of completing the same types of remedial education courses as part of a disciplinary action under proposed amended §213.32(6). However, the specified violations in proposed amended §213.32(6) typically involve more serious conduct than the violations involved in a corrective action proceeding, such as medication administration or practice errors that result in patient harm. In these cases, the Board will typically require an individual to complete additional remedial education courses, such as medication administration and patient assessment courses. The Board collected a sampling of remedial education courses that are currently being offered by various approved providers in the areas of medication administration and patient assessment. Based upon the information received by the Board during its sampling, the Board estimates that a medication administration course will cost between $700 - $800 and a physical assessment course with a clinical component will cost between $500 - $1,000. The cost of any particular course, especially those involving a clinical component, will vary based upon the following factors: (i) the geographical location of the individual; (ii) the availability of instructors and/or preceptors; (iii) the availability of facilities; (iv) whether professional liability insurance is required to enroll in a course, which is estimated to cost approximately $250 - $500 per year; (v) whether a criminal background check is required to enroll in a course, which is estimated to cost approximately $50 - $75; (vi) whether certain certifications or vaccinations are required to enroll in a course, which are estimated to cost approximately $20 - $75; and (vi) whether an individual must travel to a different location in order to attend a certain course. Each individual, however, has the information necessary to estimate his or her own compliance costs. The amounts of the fines in proposed amended §213.32(6) range between $250 - $5,000. If a fine is imposed in a disciplinary action under proposed amended §213.32(6), the amount of the fine may vary among individuals, based upon the following factors: (i) the particular violation for which the fine is being imposed; (ii) whether the individual has committed a violation more than once; (iii) whether the individual has committed a cluster of violations; (iv) the seriousness of the violation; (v) the amount necessary to deter the conduct; (vi) the potential harm to the public health, safety, and welfare; (vii) efforts made to correct the violation; and (viii) any mitigating factors or other matters that justice may require. Each individual, however, has the information necessary to estimate his or her own compliance costs. Any other costs to comply with the proposal result from the enactment of the Occupations Code Chapter 301, including new Subchapter N, and are not a result of the adoption, enforcement, or administration of the proposal.
As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments and new paragraphs will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposal because no individual, Board regulated entity, or other entity required to comply with the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or §2006.001(2). The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The only entities subject to the proposal are licensees and individuals regulated under Chapter 301. Because such licensees and individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no licensee or individual regulated under Chapter 301 qualifies as a micro business or small business under the Government Code §2006.001(1) or §2006.001(2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.
The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 30 days from the date of publication in the Texas Register to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
The amendments and new paragraphs are proposed 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.
The following statutes are affected by this proposal: Section 213.32 - Occupations Code §§301.453, 301.4531, 301.466(a) and (b), 301.501, 301.502, 301.651 - 301.657, and 301.151.
§213.32.Corrective Action Proceedings and Schedule of Administrative Fines [Fine(s)].
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; and
(F) failure to develop, maintain, and implement a peer review plan according to statutory peer review requirements.
(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. [In
disciplinary matters, the Board may assess a monetary penalty or fine
in the circumstances and amounts as described.]
(5) [(1)] A fine, [
The following violations may be appropriate for disposition by fine,
] with or without remedial education [
educational] 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) aiding, abetting or permitting
a nurse to practice on a delinquent license:]
[(i) first occurrence: $100 - $500;]
[(ii) subsequent occurrence: $200 - $1,000;]
(D) [(E)] failure to comply
with continuing competency [CE
] requirements:
(i) first occurrence: $250 [$100];
(ii) subsequent occurrence: $500 [$250];
(E) [(F)] failure to comply
with mandatory reporting requirements:
(i) first occurrence: $250 [$100] - $500;
(ii) subsequent occurrence: $500 [$200] - $1,000;
(F) [(G)] failure to assure
licensure/credentials of personnel for whom the nurse is administratively
responsible:
(i) first occurrence: $250 [$100] - $500;
(ii) subsequent occurrence: $500 [$200] - $1,000;
(G) [(H)] 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 [$200] - $800;
(ii) second occurrence: $500 - $1000;
(H) [(I)] failure to report unauthorized practice:
(i) first occurrence: $250 [$100] - $500;
(ii) subsequent occurrence: $500 [$200] - $1,000;
(I) [(J)] failure to comply
with Board requirements for change of name/address:
(i) first occurrence: $250 [$100];
(ii) subsequent occurrence: $300 [$150];
(J) [(K)] failure to develop,
maintain and implement a peer review plan according to statutory peer
review requirements:
(i) first occurrence: $250 [$100] - $1,000;
(ii) subsequent occurrence: $500 - $1,000;
(K) [(L)] failure to file, or
cause to be filed, complete, accurate and timely reports required
by Board order: $250 for first occurrence;
[(i) first occurrence: $100;]
[(ii) subsequent occurrence: $250;]
(L) [(M)] failure to make complete
and timely compliance with the terms of any stipulation contained
in a Board order: $250 for first occurrence;
[(i) first occurrence: $100;]
[(ii) subsequent occurrence: $250;]
(M) [(N)] 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) [(O)] 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 [$100] - $500;
(ii) subsequent occurrence: $500 [$200] - $1,000.
(6) [(2)] The following violations
may be appropriate for disposition by fine in conjunction with one
or more of the penalties/sanctions contained elsewhere [
listed] in the Board's [these] rules:
(A) violations other than those listed in paragraphs
(2) and (5) [paragraph (1)(A) - (N)] of this section:
(i) first occurrence: $250 [$100] - $1,000;
(ii) subsequent occurrence: $500 [$200] - $1,000; and
(B) a cluster of violations listed in paragraphs (2) and (5) [
(paragraph(1)(A) - (O)] of this section: $250 [$100] - $5,000.
[(3) Each day a violation continues
or occurs is a separate violation for purposes of imposing a penalty
or fine.]
(7) [(4)] The executive director
is authorized to dispose of violations listed in
paragraphs (2) and (5) [paragraph (1)(A) - (O)
] of this section[, by fine, or by a combination of fine and stipulations for education,
which shall be effective] 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 proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 24, 2009.
TRD-200903712
James W. Johnston
General Counsel
Texas Board of Nursing
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-6811
CHAPTER 273. GENERAL RULES
The Texas Optometry Board proposes amendments to §273.4, concerning fees, and §273.7, concerning the Retired License for volunteer charity care, and proposes new §273.13, concerning the authority of a community health center to contract with or employ optometrists and therapeutic optometrists.
The amendments to §273.4 raise the license renewal fees by $29.00 in order to provide funding for increased expenses to operate the agency. Amendments also change the late renewal fee for renewals one to ninety days late, and for renewals 90 to 365 days late, and the late fee for failure to timely obtain continuing education, since these fees are based on the license renewal fee. The amendments also change the fee for the Retired License to the amount of the inactive renewal fee as required by §351.265 of the Optometry Act and in conformance with Texas Occupations Code §112.051. A new subsection sets an application fee of $25.00 for former licensees applying for a Retired License.
The amendments to §273.7 set out the requirements for implementing House Bill 675, 81st Legislature, Regular Session, including application requirements for a Retired License to practice volunteer charity care, definition of charity care, and requirements to reinstate a license. New rule §273.13 implements the provisions of Senate Bill 1476, 81st Legislature, Regular Session.
Chris Kloeris, executive director of the Texas Optometry Board, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications for local government as a result of enforcing or administering the amendments. For state government, there will be increased revenue of $100,837.00 (including the amount dedicated to the University of Houston) of the first year of the biennium and each year thereafter that the amended license fee amounts are in effect. Increased revenue of $6,576 (including the amount dedicated to the University of Houston) each year will be realized due to the modification of the late renewal penalty as required by statute. Increased revenue of less than $100 of the first year of the biennium and each year thereafter that fee amounts are in effect is expected from the amendment to increase the late continuing education penalty. The agency plans to reduce the fees for fiscal year 2011. Increased revenue from the fee for the Retired License of $500.00 is forecast for the first year of the biennium and $1,000 for each year thereafter that the amended license fee amounts are in effect. The application fee is forecast to realize increased revenue of less than $100 for each year.
Mr. Kloeris also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amendments will be that agency is funded for the replacement of an obsolete computer system, the establishment of a program to assist licensees with addictions and mental health issues, and increased travel costs. The amendments also allow the agency to implement House Bill 675, 81st Legislature, Regular Session. The public benefit anticipated for amendments to §273.7 is that additional licensees will be able to practice volunteer charity care. The public benefit anticipated from new rule §273.13 is that community health centers will be able to employ optometrists along with other health care providers.
Economic Impact Statement and Regulatory Flexibility Analysis
The Board licenses approximately 3,700 optometrists and therapeutic optometrists. Approximately 2,900 have active licenses. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. The Board does not license these practices. The economic costs for persons who are required to comply with the amendments, will be a $29.00 license renewal fee increase for each license holder. The fee is imposed on individual professionals and therefore no disparate effect is foreseen on small or micro-businesses. The late renewal fee is only imposed on individuals failing to timely renew, and the late continuing education penalty is only imposed on individuals failing to timely obtain continuing education. The Retired License fee is also imposed directly on individual licensees and is less than the currently required active license fee. The application fee for reinstatement of an active license by a holder of a retired license is also imposed directly on individual licensees. Comments are solicited if a disparate cost of compliance can be established. No economic costs are required for most persons complying with the amendments to §273.7 since the majority of applicants for a Retired License will be currently licensed by the agency, and no application fees are required and continuing education requirements are less than that required of current licensees. Applicants whose license has expired one year or more and apply for a Retired License will also not be required to take more continuing education than a current licensee. The applicants whose licenses expired five years or more before applying for a therapeutic Retired License will be required to travel to Houston or Austin to take the Jurisprudence Exam. Depending on the distance from Austin or Houston, travel costs will range from less than $25.00 to $600.00. The Jurisprudence Exam is essential in that it measures whether an applicant who may not have been licensed for over five years has current knowledge of the agency's rules regarding the administration and prescribing of prescription medications. The agency gives the exam in Austin or Houston to insure the efficacy of the exam. The exam costs are imposed on individuals. No disparate effect is foreseen on small or micro-businesses. It is anticipated that there will be no economic costs, other than nominal copying and postage costs to submit the required application for community health centers who wish to comply with new rule §273.13.
Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.
The amendment is proposed under the Texas Optometry Act, Texas Occupations Code, §§351.151, 351.152, 351.304, 351.308 and 351.265; Texas Occupations Code §112.051; House Bill 675, Senate Bill 1476, and Senate Bill 1, 81st Legislature, Regular Session. No other sections are affected by the amendments.
The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession; §351.152 as granting the Board the authority to establish by rule reasonable and necessary fees to cover the costs of administering the act; §351.304 as setting the requirements for late renewal fees, and §351.308 as setting the fee for delayed continuing education compliance. Section 351.265 and House Bill 675 create a new category of Retired License and §112.051 sets out similar requirements for the license. Senate Bill 1476, authorizes the Board to certify community health center to contract with or employ optometrists and therapeutic optometrists. Senate Bill 1 authorizes the funding mechanism for the agency.
§273.4.Fees (Not Refundable).
(a) - (f) (No change.)
(g) License Renewal $216.00 [$187.00]
plus $200.00 additional fee required by §351.153 of the Act,
and plus $1.00 fee required by House Bill 2985, 78th Legislature.
The inactive licensee fee does not include $200.00 additional fee.
Total fees: $417.00 [$388.00
] active renewal; $217.00 [$188.00] inactive renewal.
(h) License fee for late renewal, one to 90 days late: $324.00 [$280.50
] plus $200.00 additional fee required
by §351.153 of the Act, and plus $1.00 fee required by House
Bill 2985, 78th Legislature. The inactive licensee fee does not include
$200.00 additional fee. Total late license fees: $525.00 [$481.50
] active renewal; $325.00 [$281.50] inactive renewal.
(i) License fee for late renewal, 90 days to one year
late: $432.00 [$374.00] plus $200.00 additional
fee required by §351.153 of the Act, and plus $1.00 fee required
by House Bill 2985, 78th Legislature. The inactive licensee fee does
not include $200.00 additional fee. Total late license fees:
$633.00 [$575.00] active renewal; $433.00 [
$375.00] inactive renewal.
(j) Late fees (for all renewals with delayed continuing
education) $216.00 [$187.00].
(k) - (n) (No change.)
(o) Retired License. $216.00 [$25.00
plus $200.00 additional fee required by Section 351.153 of the Act,
and] plus $1.00 fee required by House Bill 2985, 78th Legislature.
Total fee: $217.00 [$226.00].
(p) Retired License to Active License Application Fee. For individuals holding Retired License making application for active license. $25.00.
§273.7.Inactive Licenses and Retired License for Volunteer Charity Care.
(a) - (c) (No change.)
(d) Retired License. The Board may issue a Retired
License to optometrists or therapeutic optometrists [Occupations
Code Section 112.051 requires the Board to adopt rules providing for
reduced fees and continuing education requirements for a retired health
care practitioner] whose only practice is volunteer charity
care pursuant to subsections (d) - (k) of this section.
(e) Application. An applicant holding a current
license may apply for a Retired License by submitting to the Board
a completed application with the license fee required by §273.4
of this title (relating to Fees (Not Refundable) [for a
Retired License must complete and submit to the Board the Retired
License Application]. There is no charge to apply. A Retired
License will not be issued to applicants subject to current or pending
disciplinary action. In determining whether to grant retired status,
the Board shall consider the age, years of practice, and status of
the license holder at the time of the application. Applicants
must supply proof that the continuing education requirements for a
Retired License have been met in §275.1(g)(1) of this title
(relating to General Requirements)[. See §275.1 of
this title] (Rule 275.1).
(f) Application by Expired Licensee. A former licensee whose license has expired for one year or more may apply for a Retired License by submitting to the Board a completed application with the license fee required by §273.4 of this title. There is no charge to apply. A Retired License will not be issued to applicants subject to current or pending disciplinary action. Applicants must supply proof of having met the continuing education requirements of §275.1(g)(2) of this title. An applicant for a therapeutic Retired License must have been licensed by the Board as a therapeutic optometrist. An applicant for a therapeutic Retired License whose license has been expired for five years or more must supply proof of a passing score on the jurisprudence examination taken within the one year period prior to the submission of the application. In determining whether to grant retired status, the Board shall consider the age, years of practice, and status of the license holder at the time of the application.
(g) [(f)] Scope of License. The
holder of a Retired License may practice optometry or therapeutic
optometry in the same manner as an active licensee of the Board, subject
to the restrictions contained in this section. A holder of a
Retired License may only practice optometry or therapeutic optometry
when such practice is without compensation or expectation of compensation
(except for the reimbursement of travel and supply expenses) as a
direct service volunteer of a charitable organization.
(h) [(g)] Charitable Organization.
A charitable organization [is defined in Section 84.003 of the
Texas Civil Practice and Remedies Code and] includes any bona
fide charitable, religious, prevention of cruelty to children or animals,
youth sports and youth recreational, neighborhood crime prevention
or patrol, or educational organization (excluding fraternities, sororities,
and secret societies), or other organization organized and operated
exclusively for the promotion of social welfare by being primarily
engaged in promoting the common good and general welfare of the people
in a community, including these types of organizations with a
§501(c)(3) or (4) [Section 501(c)(3) or (4)] exemption from
federal income tax, some chambers of commerce, and volunteer centers
certified by the Department of Public Safety.
(i) [(h)] Renewal. A Retired
License expires on the same date as a regular license. Prior to renewing
the license, the licensee must supply proof that the continuing education
requirements for a Retired License have been met. The license
renewal fee is set in §273.4 of this title.
(j) [(i)] Penalty. The holder
of a Retired License shall not receive compensation for the practice
of optometry. To do so constitutes the practice of optometry without
a license and subjects the optometrist or therapeutic optometrist
to the penalties imposed for this violation.
(k) Reinstatement of an Active License by a Holder of a Retired License. The Board may reinstate an active license to applicants who hold a Retired License pursuant to the requirements of this subsection. Applicants may apply for reinstatement by submitting to the Board a completed application with the application fee required by §273.4 of this title. Applicants must supply proof that the continuing education requirements for an active license have been met. If the Board approves the application to reinstate the active license, the Board may issue the license once the requirements of subsection (b)(1)(C) and (D) of this section have been met. An active license will not be issued to a holder of a Retired License who applied for that license under subsection (f) of this section.
§273.13.Contract or Employment with Community Health Centers.
(a) Definitions.
(1) Community Health Center. A nonprofit corporation under the Texas Non-Profit Corporation Act and §501(c)(3), Internal Revenue Code of 1986 that is organized and operated as either:
(A) a migrant, community, or homeless health center under the authority of and in compliance with 42 U.S.C. §254b or §254c; or
(B) a federally qualified health center under 42 U.S.C. §1396d(l)(2)(B).
(2) Application for Certification by Board. A completed application contains:
(A) the completed application form provided by the Board,
(B) the certificate of incorporation under the Texas Non-Profit Corporation Act;
(C) documentation that the organization is tax exempt under §501(c)(3) of the Internal Revenue Code and,
(D) documentation that the organization is organized and operated as a migrant, community, or homeless health center under the authority of and in compliance with 42 U.S.C. §254b or §254c, or is a federally qualified health center under 42 U.S.C. §1396(d)(1)(2)(B).
(3) Certified Community Health Center. A community health center certified by the Board as making application and meeting the requirements of this section and therefore authorized to employ an optometrist or therapeutic optometrist. A certified community health center shall annually report to the Board the status of the community health center under paragraph (1) of this subsection, and shall notify the Board immediately if the health center no longer meets the requirements of paragraph (1) of this subsection. The Board shall remove the certification granted if the community health center does not meet the requirements of paragraph (1) of this subsection.
(b) Section 351.367 of the Optometry Act authorizes an optometrist or therapeutic optometrist to contract with or be employed by a certified community health center to practice optometry and therapeutic optometry.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 2009.
TRD-200903661
Chris Kloeris
Executive Director
Texas Optometry Board
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8502
The Texas Optometry Board proposes amendments to §275.1, concerning continuing education requirements for the Retired License for volunteer charity care. The amendments include the requirements for persons authorized by House Bill 675, 81st Legislature, Regular Session, to apply for a Retired License.
Chris Kloeris, executive director of the Texas Optometry Board, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendments.
Mr. Kloeris also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated is that licensees practicing volunteer charity care will possess current knowledge of optometry.
Economic Impact Statement and Regulatory Flexibility Analysis
The Board licenses approximately 3,600 optometrists and therapeutic optometrists. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. The Board does not license these practices. There will be no economic costs for persons who are required to comply with the amendments, since the amendments require a current or former license applying for a Retired License to obtain less than or the same amount of continuing education that a licensee practicing optometry is currently required to obtain, and require holders of Retired Licenses to obtain the same professional responsibility course as regular licensees. No disparate effect is foreseen on small or micro-businesses.
Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-3942. The deadline for furnishing comments is thirty days after publication in the Texas Register.
The amendments are proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.358, Texas Occupations Code §112.051; and House Bill 675, 81st Legislature, Regular Session. No other sections are affected by the amendments.
The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession, and §351.358 as setting the continuing education requirements for licensees. House Bill 675, 81st Legislature, Regular Session creates a new category of Retired License and §112.051 sets out similar requirements for the license.
§275.1.General Requirements.
(a) - (f) (No change.)
(g) Retired License Continuing Education.
(1) An applicant with a current license
applying for [or a licensee renewing
] the Retired License shall obtain 8 hours of
Board [board]
approved continuing education during the calendar year preceding
the date of application [prior to receiving or renewing
the license]. All of the hours may be obtained on the Internet
or by correspondence. At least one half of these hours must be diagnostic/therapeutic
as approved by the Board and one hour must be professional responsibility [
board].
(2) An applicant whose license has expired for one year or more shall obtain 16 hours of Board approved continuing education during the calendar year preceding the date of application. All of the hours may be obtained on the Internet or by correspondence. At least 8 of these hours must be diagnostic/therapeutic as approved by the Board and one hour must be professional responsibility.
(3) The holder of a retired license shall obtain 8 hours of Board approved continuing education during the calendar year prior to renewing the license. All of the hours may be obtained on the Internet or by correspondence. At least one half of these hours must be diagnostic/therapeutic as approved by the Board and one hour must be professional responsibility.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 2009.
TRD-200903663
Chris Kloeris
Executive Director
Texas Optometry Board
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 305-8502
CHAPTER 663. STANDARDS OF RESPONSIBILITY AND RULES OF CONDUCT
SUBCHAPTER B. PROFESSIONAL AND TECHNICAL STANDARDS
The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §663.17, concerning Monumentation.
The amendment will make the monumentation of boundary lines clearer and also require that land surveyors set reference monuments when it is not practical to set a boundary marker.
Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.
Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it make the requirements of monumentation clearer.
There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.
Comments on the proposed amendment may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, TX 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register.
The amendment is proposed pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
The proposed amendment implements the Texas Administrative Code, Title 22, Part 29, General Rules of Procedures and Practices.
§663.17.Monumentation.
(a) All monuments set by registered professional land surveyors shall be set at sufficient depth to retain a stable and distinctive location and be of sufficient size to withstand the deteriorating forces of nature and shall be of such material that in the land surveyor's judgment will best achieve this goal.
(b) When delineating a [property or] boundary
line as an integral portion of a survey (survey being defined in the
Act, §1071.002(6) or (8)), the land surveyor shall set, or leave
as found, [sufficient,] stable and reasonably permanent
survey markers to represent each [or reference the
property or] boundary corner [corners],
angle point [points], or point [and
points] of curvature or tangency. When the land surveyor
deems it is impossible or impracticable to set a boundary marker on
a corner, the land surveyor shall set a reference monument and identify
it as such. If more than one reference monument is set each monument
shall be uniquely identified.
(1) All survey markers and reference monuments shall
be shown and described with sufficient evidence of the location of
such markers on the land surveyors' plat. If the land surveyor
prepares [shall prepare
] a written description of the surveyed
premise, he/she shall include in that written description:
(A) reference to and a description of the survey markers or reference monuments as shown on the plat; and
(B) his/her [the] seal and signature
as [of] a registered or licensed land surveyor.
(2) In addition, the land surveyor may furnish
a non-signed [an
] electronic copy of a written description
or plat provided that the text
or data is verbatim to that on the [
certified] document retained in the land surveyor's file.
(c) All metes and bounds descriptions [
description] prepared for easements shall be tied to physical monuments
of record related to the boundary of the affected tract.
(d) Where practical, all monuments set by Professional Land Surveyors to delineate, reference, or witness a boundary corner shall be marked in a way that is traceable to the responsible registrant or associated employer.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 18, 2009.
TRD-200903631
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Earliest possible date of adoption: October 4, 2009
For further information, please call: (512) 239-5263
The Texas Board of Professional Land Surveying (TBPLS) proposes an amendment to §664.2, concerning deadlines for fulfilling the continuing education requirement for land surveyors license renewal, §664.3, concerning the numerical requirements for continuing education, §664.4, concerning types of acceptable continuing education, and §664.5, concerning the procedure for course approval.
The amendments will clarify board policy regarding deadlines for fulfilling the continuing education requirements, the number of hours of continuing education that a land surveyor must complete in order to renew his/her license, update the accredited institutions acceptable to the board, and how the board will approve hours for continuing education credit.
Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.
Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify the continuing education requirement for license renewal.
There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.
Comments on the proposed amendments may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, TX 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register.
The amendments are proposed pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
The proposed amendments implement the Texas Administrative Code, Title 22, Part 29, General Rules of Procedures and Practices.
§664.2.Deadlines.
[(a)]
Continuing education requirements
for renewal shall be fulfilled during annual periods beginning on
the first day of a registrant's renewal year and ending on the last
day of the registrant's renewal year.
[(b) The initial annual
period for each registrant shall include the annual year period described
in this section plus the period of time from the issuance of the registrant's
first certificate to the first renewal date, or from the effective
date of this section to the next renewal date, or whichever occurs
last.]
§664.3.Numerical Requirements for Continuing Education.
A registrant, to be eligible for renewal of the certificate
of registration, must complete eight hours[, a calendar day,
] of board approved professional development
activities [courses or programs] in any annual period.
§664.4.Types of Acceptable Continuing Education.
Continuing education courses and professional development undertaken by a registrant shall be acceptable if the activity is approved by the board and falls in one or more of the following categories:
(1) (No change.)
(2) completion of undergraduate or graduate academic
courses with a passing grade in areas supporting development of skill
and competence in professional land surveying at an institution which
is accredited by ABET, Southern Association of Colleges and Schools
or an equivalent [or the Association of Southern Colleges
and Universities];
(3) - (8) (No change.)
§664.5.Procedure for Course Approval [of Programs].
Individuals and organizations may initiate requests for board approval and credits of specific programs for continuing education credit before these programs occur. Approval shall be given only for the specific program described in the request.
(1) An approved sponsor is responsible for providing
or arranging information necessary for verification of attendance
at continuing education activities. Information provided must include
the approved course number and date. [The registrant is
ultimately responsible for providing, or arranging for sponsors to
provide, the information necessary for the board to make a determination
of the applicability of the program to the continuing education requirements.]
(2) The registrant is responsible for compiling
information necessary for the board to make a determination of the
applicability of programs not previously approved by the board. [
Sponsors may initiate their own requests and may, when approval is
obtained in advance, announce such approval in connection with the
continuing education experience utilizing statements prescribed by the board.]
(3) Sponsors may initiate their own requests and
may, when approval is obtained in advance, announce such approval
in connection with the continuing education experience utilizing statements
prescribed by the board. [Programs preapproved by registration
boards of other jurisdictions will be accepted by this board at the
same continuing education unit value assigned by the other board unless
such program has been specifically disallowed by this board.]
(4) Programs pre-approved by registration boards of other jurisdictions will be accepted by this board at the same continuing education unit value assigned by the other board unless such program has been specifically disallowed by this board.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 18, 2009.
TRD-200903633
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Proposed date of adoption: October 4, 2009
For further information, please call: (512) 239-5263
22 TAC §§664.6 - 664.11, 664.13 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Board of Professional Land Surveying or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Board of Professional Land Surveying (TBPLS) proposes to repeal §664.6, concerning Criteria for Approval of Continuing Education Activities, §664.7, concerning Determination of Credit Units, §664.8, concerning Reporting of Continuing Education, §664.9, concerning Activities Unacceptable as Continuing Education, §664.10, concerning Acceptable Carry-over Continuing Education Units, §664.11, concerning Failure to Complete Required Continuing Education and §664.13, concerning Exemptions.
The repeal of these rules will remove existing language while at the same time a new rule will be proposed to replace the repealed rule. The reason for the repeal is because the board has voted to change the way continuing education will be reported. Each land surveyor will now keep record of the continuing education they have completed and at the time of license renewal will certify that they have completed the continuing education requirement for license renewal. This certification will be subject to audit. These rules will be repealed effective December 31, 2009 with the new rules being effective January 1, 2010.
Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.
Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will only change the way continuing education is reported.
There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.
Comments on the proposed repeals may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, TX 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register.
The repeals are proposed pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
The proposed repeals implement the Texas Administrative Code, Title 22, Part 29, General Rules of Procedures and Practices.
§664.6.Criteria for Approval of Continuing Education Activities.
§664.7.Determination of Credit Units.
§664.8.Reporting of Continuing Education.
§664.9.Activities Unacceptable as Continuing Education.
§664.10.Acceptable Carry-over Continuing Education Units.
§664.11.Failure to Complete Required Continuing Education.
§664.13.Exemptions.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 18, 2009.
TRD-200903632
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Proposed date of adoption: October 4, 2009
For further information, please call: (512) 239-5263
The Texas Board of Professional Land Surveying (TBPLS) proposes new §664.6, concerning reporting and record keeping of continuing education records, new §664.7, concerning the review and audit process for continuing education, new §664.8, concerning the failure to complete the required continuing education, new §664.9, concerning acceptable carry-over of continuing education units and new §664.10, concerning exemption from completing continuing education. Section 664.10 was previously §664.13 but is being renumbered due to other changes in continuing education rules.
The new sections will notify the registrant of their need to keep records of their required continuing education, the review and audit process for registrants who indicated they had completed their continuing education prior to their license renewal, the penalties for failure to complete the required continuing education, the maximum number of hours available for carry-over and why a registrant can be exempt from obtaining continuing education. These changes will be effective January 1, 2010.
Sandy Smith, Executive Director, has determined that for the first five year period the rule is in effect there will be no fiscal impact to state or local government as a result of enforcing or administering this amendment.
Ms. Smith has also determined that for each year of the first five years the rule is in effect the public will benefit from the rule because it will clarify how the board will require the registrant to keep records of their continuing education, the review and audit process, penalties for failure to complete continuing education, carry-over hours and exemptions from completing continuing education.
There will be no effect on small or micro businesses that are in compliance with the Board's Act and Rules. There are no anticipated costs to those who are required to comply with the rule as proposed.
Comments on the proposed new sections may be submitted in writing to Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, 12100 Park 35 Circle, Building A, Suite 156, Austin, TX 78753. Comments may also be faxed to Ms. Smith at the Board at (512) 239-5253 or may be sent electronically to ssmith@txls.state.tx.us. All requests for a public hearing on the proposed section submitted under the Administrative Procedure Act must be received by the Executive Director not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register.
The new sections are proposed pursuant to §1071.151, Title 6, Occupations Code, Subtitle C, which authorizes the Board to adopt and enforce reasonable and necessary rules to perform its duties.
The new sections implement the Texas Administrative Code, Title 22, Part 29, General Rules of Procedures and Practices.
§664.6.Reporting and Record Keeping.
The registrant shall complete the application for renewal of a license with the required fee and declaration that he or she has obtained the required continuing education. Maintaining records to be used to support continuing education claimed in the event of an audit is the responsibility of the registrant.
§664.7.Review and Audit Process.
For each annual renewal period, the Board shall select, on a random basis, not less than five (5) percent of renewal applications for audit. The Board shall request each selected registrant to furnish a Continuing Education Log, on the form provided by the Board, chronicling the continuing education activities for the preceding year. The registrant must also furnish verification of attendance at the listed activities on the Board's Continuing Education Log. Upon receipt of the requested records, the Board may request the registrant to furnish further evidence necessary to satisfy the Board that the registrant has complied with the continuing education requirements of this rule. If, through a complaint process, a violation of the Board's Rules or the Act is found the registrant will be subject to an audit as described above.
§664.8.Failure to Complete Required Continuing Education.
Failure to complete the continuing education requirements is a violation of Board rules and is subject to administrative penalties. If, after an audit is performed, it is determined that a registrant failed to complete all requirements for renewal of the certification of registration the registrant's license is suspended immediately upon the determination. The registrant's license shall be renewed upon submission of the required and approved continuing education report, payment of required late renewal fees, completion of required affidavits, and payment of any additional administrative penalties. The registrant will have 90 days after notification of license suspension to complete the required continuing education to avoid forfeiture of license. The ending dates of a registrant's subsequent annual continuing education cycles under §664.2 of this title (relating to Deadlines) are not changed or extended when a registrant did not meet continuing education requirements in any previous period(s).
§664.9.Acceptable Carry-over Continuing Education Units.
If a registrant exceeds the annual requirement in any renewal period, a maximum of 8 continuing education units may be carried forward into the subsequent renewal period.
§664.10.Exemptions.
A registrant may be exempt from the professional development educational requirements for one of the following reasons:
(1) New registrant by way of examination shall be exempt for their first renewal period.
(2) A license holder serving on active duty and deployed outside Texas in or for the military service of the United States for a period of time exceeding one hundred twenty (120) consecutive days in a year shall be exempt from obtaining the professional development hours required during that year.
(3) Registrants who list their status as "Inactive".
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 18, 2009.
TRD-200903634
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Proposed date of adoption: October 4, 2009
For further information, please call: (512) 239-5263