PART 11. TEXAS BOARD OF NURSING
CHAPTER 213. PRACTICE AND PROCEDURE
The Texas Board of Nursing (Board) adopts, on an emergency basis, amendments and new paragraphs to §213.32, concerning Schedule of Administrative Fine(s), to take effect on September 1, 2009. The Board is authorized by the Government Code §2001.034(a) to adopt an emergency rule without prior notice or hearing if a requirement of state or federal law requires the adoption of a rule on fewer than 30 days' notice. An emergency rule adopted under the Government Code §2001.034 may be effective for not longer than 120 days and may be renewed once for not longer than 60 days.
The 81st Texas Legislature, Regular Session, enacted Senate Bill (SB) 1415, which adds new Subchapter N to the Occupations Code Chapter 301. SB 1415 authorizes the Board to impose a corrective action, which is a non-disciplinary action consisting of a fine, remedial education, or any combination of a fine or remedial education, on an individual who violates a provision of Chapter 301 or a rule or order adopted under Chapter 301. 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. SB 1415 becomes effective on September 1, 2009. SB 1415 does not identify the specific types of violations for which a corrective action may be imposed by the Board or the specific procedures and/or requirements that must be met by an individual in order to be eligible to receive a corrective action. As a result, the provisions of SB 1415 cannot be fully implemented by the Board without the adoption of such guidelines. The adoption of the emergency rules permits the Board to comply with the effective date of SB 1415 so that the requirements of SB 1415 may be fully implemented on September 1, 2009.
The adopted amendments and new paragraphs identify the six specific violations for which a corrective action may be imposed by the Board. Further, the adopted amendments and new paragraphs prohibit an individual from being eligible to receive a corrective action (i) if the individual has committed one of the specified violations more than one time or (ii) if the individual has committed more than one of the specified violations. The adopted amendments and new paragraphs establish a $500 fine that may be imposed as part of a corrective action. The adopted amendments and new paragraphs also clarify that (i) the Executive Director of the Board has the sole discretion to offer an individual a corrective action and (ii) an individual may not receive a corrective action as the result of a contested case proceeding conducted under the Government Code Chapter 2001. Further, the adopted amendments and new paragraphs distinguish a corrective action, which is a non-disciplinary action comprised of a fine, remedial education, or a combination of a fine and remedial education, from a disciplinary action under the Occupations Code Chapter 301 Subchapter J, which may also be comprised of a fine and/or remedial education. The adopted amendments and new paragraphs also authorize the Executive Director to offer and accept a corrective action without ratification by the Board and require the Executive Director to report such cases to the Board at its regular meetings. Finally, the adopted amendments appropriately re-designate the remaining paragraphs of §213.32.
The amendments and new paragraphs are adopted on an emergency basis under the Occupations Code §§301.453(a), 301.4531, 301.466(a) and (b), 301.501, 301.502, 301.651 - 301.657, and 301.151. The Occupations Code §301.453(a) provides that, if the Board determines that a person has committed an act listed in §301.452(b), the Board shall enter an order imposing one or more of the following: (1) denial of the person's application for a license, license renewal, or temporary permit; (2) issuance of a written warning; (3) administration of a public reprimand; (4) limitation or restriction of the person's license, including limiting to or excluding from the person's practice one or more specified activities of nursing or stipulating periodic board review; (5) suspension of the person's license for a period not to exceed five years; (6) revocation of the person's license; or (7) assessment of a fine. The Occupations Code §301.4531(a) states that the Board by rule shall adopt a schedule of the disciplinary sanctions that the Board may impose under Chapter 301. In adopting the schedule of sanctions, the Board shall ensure that the severity of the sanction imposed is appropriate to the type of violation or conduct that is the basis for disciplinary action. The Occupations Code §301.4531(b) states, in determining the appropriate disciplinary action, including the amount of any administrative penalty to assess, the Board shall consider: (i) whether the person is being disciplined for multiple violations of either Chapter 301 or a rule or order adopted under Chapter 301 or has previously been the subject of disciplinary action by the Board and has previously complied with Board rules and Chapter 301; (ii) the seriousness of the violation; (iii) the threat to public safety; and (iv) any mitigating factors. The Occupations Code §301.4531(c) provides that, in the case of a person described by §301.4531(b)(1)(A), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a single violation; and in the case of a person described by §301.4531(b)(1)(B), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a person who has not previously been the subject of disciplinary action by the Board. The Occupations Code §301.466(a) provides that a complaint and investigation concerning a nurse under Subchapter J and all information and material compiled by the Board in connection with the complaint and investigation are confidential and not subject to disclosure under the Government Chapter 552 and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the Board or a Board employee or agent involved in license holder discipline. The Occupations Code §301.466(b) provides that, notwithstanding §301.466(a), information regarding a complaint and an investigation may be disclosed to: (i) a person involved with the Board in a disciplinary action against the nurse; (ii) a nursing licensing or disciplinary Board in another jurisdiction; (iii) a peer assistance program approved by the Board under the Health and Safety Code Chapter 467; (iv) a law enforcement agency; or (v) a person engaged in bona fide research, if all information identifying a specific individual has been deleted. The Occupations Code §301.501 provides that the Board may impose an administrative penalty on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301. The Occupations Code §301.502(a) states that the amount of the administrative penalty may not exceed $5,000 for each violation. Further, each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The Occupations Code §301.502(b) states that the amount of the penalty shall be based on: (i) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (ii) the economic harm to property or the environment caused by the violation; (iii) the history of previous violations; (iv) the amount necessary to deter a future violation; (v) efforts made to correct the violation; and (vi) any other matter that justice may require. The Occupations Code §301.651 provides that "corrective action" means a fine or remedial education imposed under §301.652. The Occupations Code §301.652(a) states that the Board may impose a corrective action on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301. The corrective action: (i) may be a fine, remedial education, or any combination of a fine or remedial education; (ii) is not a disciplinary action under Subchapter J; and (iii) is subject to disclosure only to the extent a complaint is subject to disclosure under §301.466. The Occupations Code §301.652(b) authorizes the Board to adopt guidelines for the types of violations for which a corrective action may be imposed. The Occupations Code §301.653 states that, if the Executive Director determines that a person has committed a violation for which a corrective action may be imposed under the guidelines adopted under §301.652(b), the Executive Director may give written notice of the determination and recommendation for corrective action to the person subject to the corrective action. The notice may be given by certified mail. The notice must: (i) include a brief summary of the alleged violation; (ii) state the recommended corrective action; and (iii) inform the person of the person's options in responding to the notice. The Occupations Code §301.654 states that, not later than the 20th day after the date the person receives the notice under §301.653, the person may accept in writing the Executive Director's determination and recommended corrective action or reject the Executive Director's determination and recommended corrective action. The Occupations Code §301.655(a) states that, if the person accepts the Executive Director's determination and satisfies the recommended corrective action, the case is closed. The Occupations Code §301.655(b) states that, if the person does not accept the Executive Director's determination and recommended corrective action as originally proposed or as modified by the Board or fails to respond in a timely manner to the Executive Director's notice as provided by §301.654, the Executive Director shall terminate proceedings under Subchapter N and dispose of the matter as a complaint under Subchapter J. The Occupations Code §301.656 states that the Executive Director shall report periodically to the Board on the corrective actions imposed under Subchapter N, including: (i) the number of corrective actions imposed; (ii) the types of violations for which corrective actions were imposed; and (iii) whether affected nurses accepted the corrective actions. The Occupations Code §301.657(a) states that, except to the extent provided by §301.657, a person's acceptance of a corrective action under Subchapter N does not constitute an admission of a violation but does constitute a plea of nolo contendere. The Occupations Code §301.657(b) provides that the Board may treat a person's acceptance of corrective action as an admission of a violation if the Board imposes a sanction on the person for a subsequent violation of Chapter 301 or a rule or order adopted under Chapter 301. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing.
§213.32.Corrective Action Proceedings and Schedule of Administrative Fines [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;
(E) failure to comply with CE requirements:
(i) first occurrence: $100;
(ii) subsequent occurrence: $250;
(F) failure to comply with mandatory reporting requirements:
(i) first occurrence: $100 - $500;
(ii) subsequent occurrence: $200 - $1,000;
(G) failure to assure licensure/credentials of personnel for whom the nurse is administratively responsible:
(i) first occurrence: $100 - $500;
(ii) subsequent occurrence: $200 - $1,000;
(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: $200 - $800;
(ii) second occurrence: $500 - $1000;
(I) failure to report unauthorized practice:
(i) first occurrence: $100 - $500;
(ii) subsequent occurrence: $200 - $1,000;
(J) failure to comply with Board requirements for change of name/address:
(i) first occurrence: $100;
(ii) subsequent occurrence: $150;
(K) failure to develop, maintain and implement a peer review plan according to statutory peer review requirements:
(i) first occurrence: $100 - $1,000;
(ii) subsequent occurrence: $500 - $1,000;
(L) failure to file, or cause to be filed, complete, accurate and timely reports required by Board order:
(i) first occurrence: $100;
(ii) subsequent occurrence: $250;
(M) failure to make complete and timely compliance with the terms of any stipulation contained in a Board order:
(i) first occurrence: $100;
(ii) subsequent occurrence: $250;
(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
(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: $100 - $500;
(ii) subsequent occurrence: $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: $100 - $1,000;
(ii) subsequent occurrence: $200 - $1,000; and
(B) a cluster of violations listed in paragraphs
(2) and (5) [paragraph (1)(A) - (O)
] of this section: $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 emergency adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 25, 2009.
TRD-200903759
James W. Johnston
General Counsel
Texas Board of Nursing
Effective Date: September 1, 2009
Expiration Date: December 29, 2009
For further information, please call: (512) 305-6811
CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS
The Texas Real Estate Commission (TREC) adopts on an emergency basis amendments to §537.30, Standard Contract Form TREC No. 23-8 (New Home Contract (Incomplete Construction)) and §537.31, Standard Contract Form TREC No. 24-8 (New Home Contract (Complete Construction). The amendments are adopted on an emergency basis to eliminate from the new home contracts provisions required by the Texas Residential Construction Commission Act (Title 16 of the Texas Property Code) that will not be appropriate after the September 1, 2009, expiration of the Act. In §537.30 and §537.31, Standard Contract Forms TREC Nos. 23-8 and 24-8 are amended to delete from Paragraph 22 the references to the Addendum Containing Required Notices Under §§5.016, 420.001 and 420.002, Texas Property Code.
The emergency amendments are adopted under Texas Occupations Code, §1101.155, which authorizes the Texas Real Estate Commission to adopt rules in the public's best interest that require license holders to use contract forms prepared by the Texas Real Estate Broker-Lawyer Committee and adopted by the commission.
The statute affected by this emergency rule is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments.
§537.30.Standard Contract Form TREC No. 23- 9 [8].
The Texas Real Estate Commission adopts by reference standard
contract form TREC No. 23-9 [8] approved by
the Texas Real Estate Commission in 2009 [2008]
for use in the sale of a new home where construction is incomplete.
This document is published by and available from the Texas Real Estate
Commission, P.O. Box 12188, Austin, Texas 78711-2188, www.trec.state.tx.us.
§537.31.Standard Contract Form TREC No. 24- 9 [8].
The Texas Real Estate Commission adopts by reference standard
contract form TREC No. 24-9 [8] approved by
the Texas Real Estate Commission in 2009 [2008]
for use in the sale of a new home where construction is completed.
This document is published by and available from the Texas Real Estate
Commission, P.O. Box 12188, Austin, Texas 78711-2188, www.trec.state.tx.us.
This agency hereby certifies that the emergency adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 28, 2009.
TRD-200903818
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective Date: September 1, 2009
Expiration Date: December 29, 2009
For further information, please call: (512) 465-3926
(Editor's note: The text of the following section adopted for repeal on an emergency basis will not be published. The section may be examined in the offices of the Texas Real Estate Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Real Estate Commission (TREC) adopts on an emergency basis the repeal of §537.50, Standard Contract Form TREC No. 43-0 (Addendum Containing Required Notices under §§5.016, 420.001 and 420.002, Texas Property Code). The repeal is adopted on an emergency basis to eliminate an addendum for new home contracts required by the Texas Residential Construction Commission Act (Title 16 of the Texas Property Code) that will not be appropriate after the September 1, 2009, expiration of the Act. The repeal of §537.50, Standard Contract Form TREC No. 43-0, repeals the Addendum Containing Required Notices Under §§5.016, 420.001 and 420.002, Texas Property Code, which will no longer be required to be provided to buyers of new homes.
The emergency repeal is adopted under Texas Occupations Code, §1101.155, which authorizes the Texas Real Estate Commission to adopt rules in the public's best interest that require license holders to use contract forms prepared by the Texas Real Estate Broker-Lawyer Committee and adopted by the commission.
The statute affected by this emergency repeal is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the repeal.
§537.50.Standard Contract Form TREC No. 43-0.
This agency hereby certifies that the emergency adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 28, 2009.
TRD-200903799
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Effective Date: September 1, 2009
Expiration Date: December 29, 2009
For further information, please call: (512) 465-3926