PART 8. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
CHAPTER 153. RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT
The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to §153.5, Fees. The proposed amendments would create a fee of $30 for prospective applicants for a license or certification who request an evaluation of their criminal history pursuant to House Bill 963 (81st Legislature), which created a process by which applicants for occupational licenses may seek a determination regarding their criminal history prior to filing an application for licensure. The proposed amendments would also increase licensing fees by $50/year, as follows: the fee to apply for or renew a (two-year) general certification will increase from $260 to $360, the fee to apply for or renew a (two-year) residential certification will increase from $210 to $310, the fee to apply for or renew a (two-year) license (including provisional licenses) will increase from $185 to $285, and the fee to apply for or renew a (one-year) appraiser trainee approval will increase from $105 to $155.
Karen Alexander, Staff Services Director, has determined that for the first five-year period the amendments to §153.5 are in effect there will be fiscal implications for the state, but not to units of local government as a result of enforcing or administering the amendments as proposed. The amendments would increase the certified general appraiser, certified residential appraiser, state licensed appraiser, provisional license, and trainee applications by $100 and renewals of same by $100 per two-year license.
Approximately 2,500 licensees and 360 applicants may be required to pay the increased fees in Fiscal Year (FY) 2010 and each year in the five-year period for total estimated revenue of 231,459 for FY 2010, and $277,750 per year for the remaining four years (FY 2011-2014).
Ms. Alexander has determined that there is no anticipated impact on local or state employment as a result of implementing the amendments. However, there is an anticipated impact on small businesses and micro-businesses. The Commission has approximately 5,000 licensed appraisers in Texas. It is estimated that nearly all of these entities are small businesses and many of them are micro-businesses. The projected economic impact of this rule amendment on these small businesses will be slightly negative due to the increased renewal and application fee. Under §2006.002, Texas Government Code, an agency is required to consider alternative regulatory methods only if the alternative methods would be consistent with the health, safety and environmental and economic welfare of the state. The TALCB has developed this proposed rule in accordance with a legislative mandate under contingent revenue riders for TALCB appropriations under Senate Bill 1, 81st Legislature, Regular Session (2009). Consequently, any variance from the legislative mandate would not be consistent with the health, safety, and environmental and economic welfare of the state, and no alternative regulatory methods have been considered.
Ms. Alexander also has determine that for each year of the first five years the amendments are effect the public benefit anticipated as a result of enforcing the amendments is that the agency will raise sufficient revenue to fund the items requested by the agency in its Legislative Appropriations request and granted under Senate Bill 1, 81st Legislature, Regular Session, 2009.
Comments on the proposal may be submitted to Devon V. Bijansky, Counsel for the Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under the Texas Occupations Code, §1103.156, Fees.
The statute affected by this proposal is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the proposed amendments.
§153.5.Fees.
(a) The Board shall charge and the commissioner shall collect the following fees:
(1) an application or renewal fee for a general certification
of $360 [$260
], for residential certification
of $310 [$210], or for licensing of
$285 [$185];
(2) an application or renewal fee for approval as an
appraiser trainee of $155 [$105];
(3) - (19) (No change.)
(20) a fee of $5 for a Pocket ID for certified general,
certified residential, state licensed, and provisional licensed appraisers;
[and]
(21) a fee of $30 for evaluation of an applicant's
education; and[.]
(22) a fee of $30 for evaluation of an applicant's criminal history.
(b) - (d) (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 31, 2009.
TRD-200903857
Devon V. Bijansky
Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) withdraws and reproposes amendments to §153.9, Applications. The proposed amendments would clarify the requirements regarding education evaluations and would adopt by reference 18 new and revised application forms. The changes to the forms primarily reflect formatting changes; however, the forms also expand and clarify the criminal background questions and harmonize, when possible, the instructions and certification sections at the end of the forms. A multi-purpose application form was divided into three separate applications: Application for Appraiser License, TALCB Form AL-0; Application for Certification - Certified Residential Appraiser, TALCB Form CRA-0; and Application for Certification - Certified General Appraiser, TALCB Form CGA-0. The Request for Inactive Status (For Expired Certification of License Within One Year of Expiration Date), TALCB Form RISE-0, was also created for expired licensees and certificate holders, based on the inactive status form for currently licensed or certified appraisers. The form previously called "Supplement to Application for Certification or License by Reciprocity" was renamed "Application for Certification or License by Reciprocity" to reflect that it is a stand-alone form. Separate ACE extension request forms for provisional licensees and for other license types were combined into a single form.
In this reproposal, the amendments would also update the application and renewal fees consistent with amendments to 22 TAC §153.5 being proposed elsewhere in this issue.
Devon V. Bijansky, Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the amendments. There is no anticipated impact on local or state employment as a result of implementing the amendments. There is no anticipated impact on small businesses or micro-businesses as a result of implementing the amendments. There is no anticipated economic cost to persons who are required to comply with the amendments.
Ms. Bijansky has also determined that the anticipated public benefit as a result of these amendments is greater clarity and consistency in TALCB's application and licensing processes.
Comments on the proposed amendments may be submitted to Devon V. Bijansky, Counsel for the Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under the Texas Occupations Code, §1103.151, Rules Relating to Certificates and Licenses.
The statute affected by this proposal is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the proposed amendments.
§153.9.Applications.
(a) A person desiring to be certified or licensed as
an appraiser, [or] approved as an appraiser
trainee, or registered as a temporary non-resident appraiser
shall file an application using forms prescribed by the Board. The
Board may decline to accept for filing an application that [
which] is materially incomplete or that [which]
is not accompanied by the appropriate fee. [Prior to submission
of any application, an applicant shall submit the applicant's education
for evaluation and approval along with the requisite education evaluation
fee and must obtain a written response from the Board showing the
applicant meets current education requirements for the applicable
license or certification. Any such approval shall then remain valid
for one year from the date of issuance.] Except as provided
by the Act, the Board may not grant a certification, license or approval
of trainee status to an applicant unless the applicant:
(1) pays the required fees [requested by the board];
(2) satisfies any experience and education requirements established by the Act or by these sections;
(3) successfully completes any qualifying examination prescribed by the board;
(4) provides all supporting documentation or information requested by the board in connection with the application;
(5) satisfies all unresolved enforcement matters and requirements with the board; and
(6) meets any additional or superseding requirements established by the Appraisal Qualifications Board.
(b) Prior to submitting an application, an applicant must submit a completed education evaluation request form along with the appropriate fee. If the Board determines that the applicant has met current education requirements for the applicable license or certification, it shall notify the applicant that his or her education has been approved. Any such approval shall then remain valid for one year from the date the Board received the education evaluation request. If the Board determines that the applicant has not completed all required education, the applicant has until one year from the date the Board received the request to meet all education requirements and submit an application for licensure or the education evaluation request will expire. If the education requirements change while the education evaluation request is pending, any evaluation issued by the Board after the new requirements take effect will be based on then-current requirements. If the education requirements change after the Board has notified the applicant that his or her education satisfies the Board's requirements but before the applicant submits an application, the applicant must meet any additional education requirements before the application will be processed.
(c) [(b)] The Texas Appraiser
Licensing and Certification Board adopts by reference the following
forms [approved by the Board and] published
by and
available from the Board, P.O. Box 12188, Austin, Texas 78711-2188,
www.talcb.state.tx.us:
(1) Application for Appraiser License, TALCB Form
AL-0; [Application for Appraiser Certification or Licensing,
TALCB Form ACL 1-1 (10/07);]
(2) Application for Certification - Certified
Residential Appraiser, TALCB Form CRA-0; [Application for
Provisional Appraiser License, TALCB Form APL 2-1 (10/07);]
(3) Application for Certification - Certified
General Appraiser, TALCB Form CGA-0; [
Affidavit Declining
Sponsorship, TALCB Form ADS 2A-0 (804);]
(4) Application for Certification or License by
Reciprocity, TALCB Form CLR-0; [Application for Approval
as an Appraiser Trainee, TALCB Form AAT 3-1 (10/07);]
(5) Application for Approval as an Appraiser Trainee,
TALCB Form AAT-0; [Supplement to Application for Appraiser
Certification or Licensing by Reciprocity, TALCB Form ACR 4-1 (10/07);]
(6) Application for Provisional Appraiser License,
TALCB Form PAL-0; [Temporary Non-Resident Appraiser Registration,
TALCB Form TRN 5-1 (10/07);]
(7) Affidavit Declining Sponsorship, TALCB Form ADS-0; [
Extension of Non-Resident Temporary Practice Registration,
TALCB Form NRE 5E-1 (10/07);]
(8) Application for Temporary Non-Resident Appraiser
Registration, TALCB Form TNAR-0; [Appraiser Experience
Affidavit, TALCB Form AEA 6-0 (804);]
(9) Request for Extension of Temporary Non-Resident
Appraiser Registration, TALCB Form NRE-0; [
Appraiser Experience Log, TALCB Form AEL 7-1 (10/08);]
(10) Request for Inactive Status (For Currently
Certified or Licensed Appraisers), TALCB Form RIS-0; [Addition
or Termination of Appraiser Trainee Sponsorship, TALCB Form TAT 8-0 (804);]
(11) Request for Inactive Status (For Expired
Certification of License Within One Year of Expiration Date), TALCB
Form RISE-0; [Change of Office Address, TALCB Form COA
9-0 (804);]
(12) Request for Active Status, TALCB Form RAS-0; [
Request for Course Approval and Renewal, TALCB Form CAR 10.0 (804);]
(13) ACE Extension Request, TALCB Form AER-0; [
Extension Request Form (For Residential/General Certified and State
Licensed Appraisers) TALCB Form ExtReq 11-1 (10/07);]
(14) Change of Address, TALCB Form COA-0; [
Extension Request Form for Provisional Licensee TALCB ExtReq-Provisional
12-1 (10/07);]
(15) Addition or Termination of Appraiser Trainee
Sponsorship, TALCB Form ATS-0; [Request for Inactive Status
Form (For Currently Certified or State Licensed Appraisers;]
(16) Appraiser Experience Affidavit, TALCB Form
AEA-0; [Request for Active Status Form; and]
(17) Appraisal Experience Explanation, TALCB Form
AEE-0; [Appraisal Experience Explanation, TALCB Form AEE
6A-0 (804).]
(18) Appraiser Experience Log, TALCB Form AEL 7-1 (10/08); and
(19) Request for Course Approval and Renewal, TALCB Form CAR 10.0 (804).
(d) [(c)] An application may
be considered void and subject to no further evaluation or processing
if an applicant fails to provide information or documentation within
60 days after the Board makes written request for the information
or documentation.
(e) [(d)] A certification, license,
or appraiser trainee approval is valid for the term for which it is
issued by the Board unless suspended or revoked for cause and unless
revoked, may be renewed in accordance with the requirements of §153.17
of this title (relating to Renewal of Certification, License or Trainee
Approval).
(f) [(e)] The Board may deny
certification, licensing, approval as an appraiser trainee, or registration
for non-resident temporary practice to an applicant who fails to satisfy
the board as to the applicant's honesty, trustworthiness, and integrity.
(h) [(g)] An application shall
be considered void and subject to no further evaluation or processing
if the applicant fails to provide acceptable documentation that all
requirements for licensure, certification, or approval as an appraiser
trainee have been met within one year of the date the application
was received by the Board.
(i) [(h)] When an application
is denied by the Board, no subsequent application will be accepted
within one year of the application denial.
This agency hereby certifies that the 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 31, 2009.
TRD-200903858
Devon V. Bijansky
Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to §153.19, Licensing and Certification for Persons with Criminal Histories. The proposed amendments would serve two primary purposes: (1) clarify that the TALCB's licensing requirements for persons with criminal histories comply with Chapter 53 of the Texas Occupations Code and (2) establish rules to implement House Bill 963's requirement that the agency issue a criminal history evaluation letter to prospective applicants for licensure or certification.
First, the amendments would more closely track the language of Chapter 53 regarding grounds for denial of or action against a license or certification. The amendments would clarify that the agency must consider the factors in subsection (d) in evaluating the qualification for licensure of every applicant with a criminal history and that automatic revocation only applies in cases in which a licensee is imprisoned.
Second, the amendments add subsection (g), which outlines the process by which a person may request and receive a criminal history evaluation letter. New subsection (g) provides that the same standards for processing license applications apply to the criminal history evaluation letter process.
Devon V. Bijansky, Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the amendments. There is no anticipated impact on local or state employment as a result of implementing the amendments. There is no anticipated impact on small businesses or micro-businesses as a result of implementing the amendments. There is no anticipated economic cost to persons who are required to comply with the amendments.
Ms. Bijansky has also determined that the anticipated public benefit as a result of these amendments is greater clarity and consistency in TALCB's application and licensing processes.
Comments on the proposed amendments may be submitted to Devon V. Bijansky, Counsel for the Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under the Texas Occupations Code, §1103.151, Rules Relating to Certificates and Licenses.
The statute affected by this proposal is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the proposed amendments.
§153.19.Licensing and Certification for Persons with Criminal Histories.
(a) (No change.)
(b) The board may suspend or revoke an existing valid
license or certification, disqualify an individual from receiving
a license or certification, deny to a person the opportunity to be
examined for a license or certification or deny any application for
a license or certification, if the person has been convicted of a
felony, had their felony probation revoked, had their parole revoked
or had their mandatory supervision revoked. Any such action shall
be made after consideration of the factors detailed in subsections
(e) and (f) of this section. A person's [Notwithstanding
the provisions of this section, the board shall suspend or revoke
an existing valid license or certification, disqualify a person from
receiving a license or certification, deny a person the opportunity
to be examined for a license or certification or deny any application
for a license or certification if the person has been convicted of
a felony or misdemeanor if the crime directly relates to the duties
and responsibilities of the licensed or certified occupation. The
board shall revoke the] license, [or]
certification, [or] authorization as an appraiser trainee,
or non-resident temporary practice registration shall be revoked
upon the person's imprisonment following a [of an individual
upon his] felony conviction, felony probation revocation, revocation
of parole, or revocation of mandatory supervision.
(c) The Texas Appraiser Licensing and Certification
Board considers it very important that persons who are licensed or
certified, persons who are candidates to be licensed or certified,
and persons who are training to be licensed or certified be honest,
trustworthy, and reliable. The public necessarily reposes a great
deal of trust and reliance upon licensed and certified appraisers
because of the complex nature of appraisal valuation, and such relationship
should not be undermined. When entering onto another's business or
residential property or when representing the interests of another,
an appraiser must [have the ability to] conduct himself
or herself with honesty, trustworthiness, reliability, and integrity.
Thus, the board deems the following felonies and misdemeanors directly
related to the occupation of licensed or certified appraisers or appraiser
trainees:
(1) offenses involving fraud or misrepresentation;
(2) offenses against real or personal property belonging to another, if committed knowingly or intentionally;
(3) offenses against public administration;
(4) offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law;
(5) offenses involving moral turpitude; and
(6) offenses of attempting or conspiring to commit any of the foregoing offenses.
(d) (No change.)
(e) In determining the present fitness of a person
who has been convicted of a crime [felony] under
this section, the board shall consider the following evidence:
(1) the extent and nature of the person's past criminal activity;
(2) the age of the person at the time of the commission of the crime;
(3) the amount of time that has elapsed since the person's last criminal activity;
(4) the conduct and work activity of the person prior to and following the criminal activity;
(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and
(6) other evidence of the person's present fitness including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the convicted person.
(f) (No change.)
(g) Criminal History Evaluation Letter. Before applying for a license or certification under this chapter, a person with a criminal history may request that the Board issue a criminal history evaluation letter. Upon receiving such a request, the Board may request additional supporting materials. Requests will be processed under the same standards as applications for licensure or certification. In responding to a request, the Board shall address each offense listed in the request.
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 31, 2009.
TRD-200903856
Devon V. Bijansky
Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3900
The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to §153.24, Processing a Complaint. The proposed amendments would enable the Board and the commissioner to designate a staff member to sign off on dismissals of enforcement complaints.
Devon V. Bijansky, Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the amendments. There is no anticipated impact on local or state employment as a result of implementing the amendments. There is no anticipated impact on small businesses or micro-businesses as a result of implementing the amendments. There is no anticipated economic cost to persons who are required to comply with the amendments.
Ms. Bijansky has also determined that the anticipated public benefit as a result of these amendments is greater efficiency in TALCB's enforcement processes.
Comments on the proposed amendments may be submitted to Devon V. Bijansky, Counsel for the Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed under the Texas Appraiser Licensing and Certification Act, Subchapter D, Board Powers and Duties (Texas Occupations Code, Chapter 1103), which provides the board with authority to adopt rules under §1103.151, Rules Relating to Certificates and Licenses and §1103.154, Rules Relating to Professional Conduct.
The statute affected by this proposal is Texas Occupations Code, Chapter 1103. No other statute, code, or article is affected by the proposed amendments.
§153.24.Processing a Complaint.
(a) - (b) (No change.)
(c) The Board or the commissioner may delegate
to Board staff the duty to dismiss complaints under the Act and these
rules. [If the Board's staff concludes, after completion
of the written investigative report provided for in Tex. Occ. Code §1103.455,
that the complaint is outside the jurisdiction of the board or is
without merit, the Board's staff may recommend to the commissioner
that the investigation be closed and that the complaint be dismissed.
If the commissioner concurs with the recommendation, the complainant
will be so notified and the investigation will be closed. The Board's
staff shall write a dismissal explanation for the dismissed complaint
and close the file.]
(d) - (g) (No change.)
(h) In determining the proper disposition of a complaint, staff shall follow the following guideline:
Figure: 22 TAC §153.24(h) (No change.)
(1) - (2) (No change.)
(3) If, after a review of the file and completion
of any investigation deemed necessary, the staff concludes that
disciplinary action is not appropriate, the commissioner or a designee of the Board
or the commissioner may dismiss the complaint. [no regulatory
purposes would be served by further action, it shall recommend to
the Board that the complaint be dismissed without further action.]
(i) - (m) (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 31, 2009.
TRD-200903855
Devon V. Bijansky
Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3900
CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC §§213.20, 213.29, 213.30, 213.33
The Texas Board of Nursing (Board) proposes amendments to §213.20, concerning Informal Proceedings and Alternate Dispute Resolution (ADR); §213.29, concerning Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters; §213.30, concerning Declaratory Order of Eligibility for Licensure; and §213.33, concerning Factors Considered for Imposition of Penalties/Sanctions and/or Fines. The proposed amendments are necessary to: (i) implement House Bill (HB) 3961, enacted by the 81st Legislature, Regular Session, effective June 19, 2009, which adds new §301.4521 to the Occupations Code Chapter 301; (ii) clarify existing Board policy regarding random drug testing; (iii) revise existing provisions for internal consistency, clarity, and readability; and (iv) correct grammatical errors.
The Occupations Code §301.4521
HB 3961 adds new §301.4521 to Chapter 301, which authorizes the Board to: (i) require an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol; and (ii) request an individual to submit to a physical or psychological evaluation if the Board believes that the individual is unable to practice nursing safely for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. If the Board requires an individual to submit to an evaluation due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 requires the Board to submit its request in writing. Further, new §301.4521 requires the Board to describe its reasons for requiring the evaluation and to inform an individual that an administrative hearing will be held at the State Office of Administrative Hearings (SOAH) to determine whether probable cause for the evaluation exists if the individual refuses to submit to the evaluation. Pursuant to new §301.4521, the hearing will be limited to the issue of whether the Board has probable cause to require the individual to submit to the evaluation. At the conclusion of the hearing, an Administrative Law Judge (ALJ) will enter an order either requiring the individual to submit to the evaluation or rescinding the Board's demand for the evaluation. If an individual refuses to submit to the evaluation after the ALJ enters an order requiring the evaluation, new §301.4521 authorizes the Board to: (i) refuse to issue or renew the individual's license; (ii) suspend the individual's license; or (iii) issue an order limiting the individual's license. If the Board requests an individual to submit to an evaluation for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 also requires the Board to submit its request in writing. Under new §301.4521, the Board is required to state its reasons for the evaluation; specify the type of evaluation it is requesting; explain how it may use the evaluation; inform the individual that he or she may refuse to submit to the evaluation; and explain the procedures for submitting an evaluation in a hearing regarding the issuance or renewal of the individual's license. If an individual refuses to consent to the requested evaluation, new §301.4521 prohibits the individual from introducing an evaluation into evidence at a hearing conducted by SOAH, unless the individual meets certain, specified requirements. New §301.4521 also requires the Board to (i) establish, by rule, the qualifications for a licensed practitioner to conduct an evaluation under §301.4521 and (ii) adopt guidelines for requiring or requesting an individual to submit to an evaluation under §301.4521.
The proposed amendments to §213.33(e) and (f) implement the requirements of HB 3961 by: (i) identifying the circumstances in which an evaluation may be required or requested by the Board under new §301.4521; (ii) specifying the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521; and (iii) prescribing the required components of an evaluation under new §301.4521. Although the proposed amendments implement the requirements of HB 3961, they do not substantially alter the Board's existing policies, procedures, and requirements regarding evaluations. Rather, the proposed amendments codify the Board's existing policies, procedures, and requirements regarding evaluations. Historically, the Board has requested evaluations in order to obtain additional information regarding whether a particular individual is safe to practice nursing. The Board has utilized the conclusions and recommendations of evaluators as additional factors to be considered when determining the appropriate remedy in a specific disciplinary case. The Board has recognized and approved evaluators based upon their expertise, credentials, knowledge, and experience in conducting evaluations. As such, the exact parameters of an evaluation have traditionally been dictated by the evaluator conducting the evaluation. Further, the Board has typically required each evaluator to utilize objective criteria during an evaluation to address the Board's particular areas of concern and to test the individual's psychological stability and veracity. While the Board acknowledges that information often emerges during an evaluation that is beyond the Board's knowledge prior to the evaluation, it has been the Board's experience that such additional information can be particularly helpful in determining the appropriate remedy in a particular case. This is especially true in situations where an evaluator indicates that an individual's risk to the public may be appropriately minimized through specific Board monitoring and supervision. Obtaining this additional information enables the Board to determine the appropriate remedy in a case and ensures that the necessary safeguards are implemented in order to protect the safety of the public. In this way, the Board has utilized evaluations to resolve disciplinary cases in an efficient, fair, and appropriate manner. Although the Board formally adopted its rules, policies, and procedures regarding evaluations as recently as 2007, the Board has requested physical, mental, and forensic evaluations from individuals since 1998 and has consistently applied its policies, procedures, and requirements regarding evaluations in disciplinary cases since that time. Although its policies, procedures, and requirements regarding evaluations have been refined over time, the essential substance of such policies, procedures, and requirements has not changed. These policies, procedures, and requirements are now being formally incorporated into the proposed amendments to §213.33, pursuant to the requirements of HB 3961.
The proposed amendments to §213.33(e) are necessary to prescribe the requirements that will apply to an evaluation required by the Board under new §301.4521(b), due to an individuals' physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Proposed amended §213.33(e) re-iterates that the Board may require an individual to submit to an evaluation if the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Further, proposed amended §213.33(e) specifies (i) the credentials that a provider must possess in order to perform an evaluation under new §301.4521(b) and (ii) the conditions that must be met by an evaluator during an evaluation. Pursuant to proposed amended §213.33(e), a provider must be a Board-approved addictionologist, addictionist, treatment evaluator, physician, medical doctor, neurologist, osteopathic, psychologist, forensic psychologist, forensic psychiatrist, or psychiatrist in order to conduct an evaluation required by the Board under new §301.4521(b). Further, the proposed amendments require the provider to possess credentials that are appropriate for the specific evaluation required by the Board. Additionally, the evaluator must be familiar with the duties appropriate to the nursing profession and the evaluation must be conducted pursuant to professionally recognized standards and methods. Proposed amended §213.33(e) also requires the evaluator to utilize objective tests and instruments during the evaluation that are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. Finally, and if applicable, proposed amended §213.33(e) requires the evaluator to also review an individual's prognosis and medication regime.
The proposed amendments to §213.33(f) are necessary to prescribe the requirements that will apply to an evaluation requested by the Board under new §301.4521(f). New §301.4521(f) authorizes the Board to request an evaluation for a reason other than an individual's physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Accordingly, the proposed amendments to §213.33(f) provide that the Board may request an evaluation in circumstances where an individuals' prior criminal history, unprofessional conduct, or good professional character is at issue. The amendments to §213.33(f) also prescribe the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521(f) and the criteria that the evaluation must meet. Under the proposed amendments, a provider must be a Board-approved forensic psychologist or forensic psychiatrist who is familiar with the duties appropriate to the nursing profession. Further, the provider must utilize objective tests and instruments that are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. Under the proposed amendments to §213.33(f), an evaluator must: (i) consider an individual's behavior or prior criminal history; and (ii) provide an opinion as to whether the individual is likely to engage in the behavior or criminal activity again and whether the individual poses any danger to the public.
The proposed requirements to §213.33(e) and (f) are necessary for several reasons. The Board is charged with protecting the health, safety, and welfare of the public from the unsafe, incompetent, unethical, or illegal conduct of licensees and individuals subject to Chapter 301. An individual's impairment creates a threat to the public's safety and welfare, regardless of whether the impairment is caused by a physical or mental condition, chemical dependency, or drug or alcohol abuse. In situations involving the impairment of an individual, the Board has a responsibility to remove the individual from all nursing duties involving direct patient care until the individual is deemed safe to return to those duties. Individuals who have a substantial criminal history or who exhibit unprofessional conduct, such as misappropriation of property or falsification of documents, may also pose a serious risk to the public's safety. In these cases, the Board is particularly concerned that such conduct may be repeated in connection with the individual's practice of nursing, thereby placing vulnerable members of the public in danger and affecting the individual's ability to safely care for patients. The Board recognizes that physical and psychological evaluations are useful tools in determining whether an individual is safe to practice nursing and has relied upon evaluations in the past for such purposes. However, an evaluation must be based upon reliable, verifiable, and objective information in order to be useful to the Board in making such determinations. As such, the proposed amendments to §213.33(e) and (f) are intended to ensure that an evaluation under new §301.4521 is conducted by an appropriately trained provider who specializes in the specific area relevant to the requested evaluation. For example, a physician, medical doctor, or osteopathic who is certified by the American Society of Addiction Medicine may be appropriate to conduct an evaluation in a situation where an individual does not acknowledge that he or she abuses chemicals, but has current indicators that he or she may be at risk for abuse or dependency, such as concurrent medical issues that require frequent or long term pain medication. In another example, an addictionist who is doctorally prepared and who specializes in diagnosing and treating chemical dependency may be appropriate to conduct an evaluation in a situation where an individual does not believe or acknowledge the abuse of chemicals, but has current non-medical related indicators that suggest that he or she may be abusing chemicals. Although the circumstances in each case will vary, the proposed amendments are designed to ensure that an appropriately trained provider conducts an evaluation to address the specific circumstances in each case. Further, the proposed amendments to §213.33(e) and (f) require an evaluator to be familiar with the duties appropriate to the nursing profession. This proposed requirement is especially significant. The Board's ultimate determination in any disciplinary case is whether an individual can safely practice nursing. In order for an evaluation to be effective and useful to the Board, an evaluator must be able to form an opinion as to whether an individual can practice nursing safely. In order to reach such an opinion, an evaluator must be familiar with the duties that are relevant to the nursing profession. Patients under the care of a nurse are vulnerable by virtue of illness or injury and are dependent upon the nature of the nurse-patient relationship. Further, the nurse-patient relationship exists in settings other than a hospital, such as in home health, hospice care, or nursing home care. An evaluator must be familiar with the types of settings in which a nurse may work, the kinds of tasks that a nurse must be able to perform, and the skills and judgment that a nurse must utilize as part of his or her daily routine. Further, an evaluator must understand the complexities associated with providing direct patient care in any setting in order to be able to adequately assess an individual's ability to meet those responsibilities. The proposed amendments to §213.33(e) and (f) also require an evaluation to be conducted pursuant to professionally recognized standards and methods and to include the use of objective tests and instruments designed to test the psychological stability, fitness to practice, professional character, and veracity of the individual. These proposed requirements are necessary to assist the Board in determining whether an individual is likely to be able to comply with the Nursing Practice Act and the Board's policies and rules in the future. This is a very important factor for the Board to consider, especially in cases that involve prior criminal or unprofessional conduct. Although the Board considers all factors and circumstances in each case, the Board is especially concerned with the likelihood that an individual's dangerous or unsafe behavior may be repeated in the future. To that end, the proposed requirements are designed to ensure that evaluators utilize objective and reliable instruments to determine if an individual: (i) is being honest and forthcoming about the events that have transpired, (ii) understands the significance of the events that have transpired, (iii) has plans in place to prevent the reoccurrence of the events that have transpired; (iv) has made amends for past conduct; (v) currently possesses the physical and mental stability to practice safely, and (vi) currently possesses the professional character necessary to practice safely. If an evaluator determines that an individual may practice safely, these factors also play a large role in determining whether the individual should be subject to Board monitoring and supervision. Although the Board considers the totality of factors present in each disciplinary case, the information and data obtained during an evaluation, including an evaluator's conclusions and recommendations, are invaluable in assisting the Board in determining whether an individual is safe to practice nursing, and, if so, under what circumstances.
Remaining Amendments
The remaining proposed amendments are necessary: (i) for consistency with the proposed amendments to §213.33(e) and (f); (ii) to clarify existing Board policy regarding random drug testing; (iii) to revise existing provisions for internal consistency, clarity, and readability; and (iv) to correct grammatical errors. First, the proposed amendments to §213.20 are necessary to clarify that a mental or physical evaluation requested under existing §213.20 is not subject to the provisions of new §301.4521. This is because a physical or mental evaluation requested under existing §213.20 is not requested by the Board for the resolution of a disciplinary matter. Rather, a physical or mental evaluation under existing §213.20 may be requested by the peer assistance program in which an individual is participating in order to properly evaluate the individual's impairment level and to plan, implement, and monitor the individual's rehabilitation and potential return to nursing practice. Decisions regarding whether an evaluation is necessary in a particular case is strictly within the purview of the peer assistance program in which the individual is participating. As such, the provisions of new §301.4521 do not apply to such evaluations. The existing language of §213.20 may be unclear in this regard, as it currently states that the Executive Director of the Board or the peer assistance program may determine whether an individual should undergo a physical or mental evaluation. In order to clarify this issue, the proposed amendments to §213.20 make clear that only the peer assistance program may determine when an evaluation is required under §213.20. The remaining amendments to §213.20 are necessary to correct a reference to the "Board of Nursing" and to correct a grammatical error. The proposed amendments to §213.29 are necessary for consistency with new §301.4521 and the proposed amendments to §213.33(e) and (f). Existing §213.29 requires an individual to obtain an evaluation in any matter before the Board that involves an allegation of chemical dependency or misuse or abuse of drugs of alcohol. An evaluation under §213.29 is subject to the requirements of new §301.4521. As such, the proposed amendments to §213.29 require an evaluation due to chemical dependency or the misuse or abuse of drugs or alcohol to meet the criteria prescribed in proposed amended §213.33. In this way, the Board is ensuring compliance with the provisions of new §301.4521 and consistency in its policies, procedures, and requirements related to evaluations. The proposed amendments to §213.29 also make clear that an individual must pay for an evaluation under §213.29. This proposed requirement is consistent with new §301.4521(i), which states that an individual must pay the costs of an evaluation conducted under §301.4521. The proposed amendments to §213.30 are also necessary for consistency with the proposed amendments to §213.33(e) and (f) and to comply with the provisions of new §301.4521. Existing §213.30(b)(3) requires an individual to obtain an evaluation if the individual's potential ineligibility is due to mental illness. Existing §213.30(b)(4) requires an individual to obtain an evaluation if the individual's potential ineligibility is due to chemical dependency, including alcohol. An evaluation under §213.30(b)(3) and (b)(4) is subject to the requirements of new §301.4521. As such, proposed amended §213.30(b)(3) requires an evaluation due to mental illness to meet the criteria prescribed in proposed amended §213.33. Proposed amended §213.30(b)(4) requires an evaluation due to chemical dependency, including alcohol, to meet the criteria prescribed in proposed amended §213.33. In this way, the Board is ensuring compliance with the provisions of new §301.4521 and consistency in its policies, procedures, and requirements related to evaluations. Finally, the proposed amendments to §213.33(a) are necessary for consistency with the proposed amendments to §213.32, which were published in the September 4, 2009, issue of the Texas Register (34 TexReg 6078). The proposed amendments to §213.32 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 under the Occupations Code Chapter 301 Subchapter N, from a disciplinary action under Subchapter J. The proposed amendments to §213.30(a) clarify that the factors specified in §213.30(1) - (13) shall be considered by the Executive Director of the Board when determining the appropriate penalty/sanction in a disciplinary case. This distinction is consistent with the distinctions made between a corrective action under Subchapter N and a disciplinary action under Subchapter J in proposed amended §213.32. The proposed amendments to §213.33(g) are necessary to clarify the Board's existing policy regarding random drug testing. If an individual is placed under Board monitoring for chemical dependency or the misuse or abuse of alcohol or drugs, the Board has typically required the individual to submit to random drug screening for a specified period of time. Further, the Board tests for approximately fourteen prohibited substances, including alcohol. The Board has required its random drug screening to be verified through urinalysis since at least 1989. Over the years, the Board has found urinalysis to be a reliable method for screening for prohibited substances, including alcohol. Further, the Board contracts with a third party vendor to conduct its drug screening, and the Board's vendor utilizes urinalysis to verify the results of the screens. The proposed amendments to §213.33(g) formally codify the Board's existing policy regarding random drug testing by clarifying that all random drug testing must be verified through urinalysis. The remaining proposed amendments to §213.33 are necessary to correct grammatical errors and to implement the consistent usage of terms within the section.
The following is a section-by-section overview of the proposal. Proposed amended §213.20(h)(1)(C) provides that a nurse required to be reported under the Occupations Code §§301.401 - 301.409 may obtain informal disposition through referral to a peer assistance program, as specified in the Occupations Code §301.410, if the nurse makes a written contract with the Board of Nursing through its Executive Director promising to undergo and pay for such physical and mental evaluations as the peer assistance program determines to be reasonable and necessary to: (i) evaluate the nurse's impairment; (ii) plan, implement, and monitor the nurse's rehabilitation; and (iii) determine if, when, and under what conditions the nurse can safely return to practice. Proposed amended §213.29(c)(1) provides that if a registered or vocation nurse is reported to the Board for intemperate use, abuse of drugs or alcohol, or diagnosis of or treatment for chemical dependency, or if a person is unable to sign the certification in §213.29(b), that the following requirement applies: any matter before the Board that involves an allegation of chemical dependency, or misuse or abuse of drugs or alcohol, will require at a minimum that such person obtain for Board review an evaluation that meets the criteria of §213.33. Proposed amended §213.29(d) states that it shall be the responsibility of those persons subject to proposed amended §213.29 to submit to and pay for an evaluation that meets the criteria of §213.33. Proposed amended §213.30(b)(3) provides that a person must submit a petition or application on forms provided by the Board, which includes, if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 and evidence of treatment. Proposed amended §213.30(b)(4) provides that a person must submit a petition or application on forms provided by the Board which includes, if the potential ineligibility is due to chemical dependency, including alcohol, evidence of an evaluation that meets the criteria of §213.33, treatment, after care, and support group attendance. The proposed amended title of §213.33 reads as "Factors Considered for Imposition of Penalties/Sanctions". Proposed amended §213.33(a) specifies the factors that shall be considered by the Executive Director when determining the appropriate penalty/sanction in disciplinary cases. Further, proposed amended §213.33(a) provides that these factors shall also be used by the State Office of Administrative Hearings (SOAH) when recommending a sanction and the Board in determining the appropriate penalty/sanction in disciplinary cases. The proposed amendments to §213.33(a)(7) and (10) replace the term "licensee" with the term "person". Proposed amended §213.33(e) provides that, if the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, the Board may require an evaluation by a Board-approved addictionologist, addictionist, treatment evaluator, physician, medical doctor, neurologist, osteopathic, psychologist, forensic psychologist, forensic psychiatrist, or psychiatrist, with credentials appropriate for the specific evaluation requested. Further, proposed amended §213.33(e) provides that the evaluator must be familiar with the duties appropriate to the nursing profession. Proposed amended §213.33(e) also states that the evaluation must be conducted pursuant to professionally recognized standards and methods. Proposed amended §213.33(e) also provides that the evaluation must include the utilization of objective tests and instruments, which at a minimum, are designed to test the psychological stability, fitness to practice, professional character, and veracity of the person subject to evaluation. Proposed amended §213.33(e) further states that, if applicable, the evaluation must include information regarding the person's prognosis and medication regime. Proposed amended §213.33(e) also provides that the person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by the Board staff and a release that permits the evaluator to release the evaluation to the Board. Proposed amended §213.33(e) also states that the person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; and, if not, the Board will provide the person a copy. Proposed amended §213.33(f)(1) provides that, when determining evidence of present fitness to practice because of known or reported unprofessional conduct, lack of good professional character, or prior criminal history, the Board may request an evaluation conducted by a Board-approved forensic psychologist or forensic psychiatrist who (i) evaluates the behavior in question or the prior criminal history of the person subject to evaluation; (ii) seeks to predict the likelihood that the person subject to evaluation will engage in the behavior in question or criminal activity again, which may result in the person committing a second or subsequent reportable violation or receiving a second or subsequent reportable adjudication or conviction; and the continuing danger, if any, that the person poses to the community; (iii) is familiar with the duties appropriate to the nursing profession; (iv) conducts the evaluation pursuant to professionally recognized standards and methods; and (v) utilizes objective tests and instruments that, at a minimum, are designed to test the psychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation. Proposed amended §213.33(f)(2) provides that the person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by Board staff and a release that permits the evaluator to release the evaluation to the Board. Proposed amended §213.33(f)(3) provides that the person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; and, if not, the Board will provide the person a copy. Proposed new §213.33(f)(4) states that the provisions of the Occupations Code §301.4521 apply to an evaluation requested under §213.33(f). Proposed amended §213.33(g) provides that, in accordance with the provisions of the Occupations Code and the Nursing Practice Act (NPA), and in keeping with the obligation to protect the consumer of nursing services from the unsafe, incompetent or unprofessional nurse, the Board has adopted recommended guidelines for disciplinary orders and conditions of probation for violations of the NPA. Further, proposed amended §213.33(g) states that the purpose of these guidelines is to give notice of the range of penalties which will normally be imposed for violations of the provisions in the Occupations Code Chapter 301 Subchapter J. Proposed amended §213.33(g) also provides that these disciplinary guidelines are based upon a single count violation of each provision listed. Proposed amended §213.33(g) provides that multiple violations of the same provision or rule, or other unrelated violations included in the administrative complaint, will be grounds for an enhancement of penalties subject to §301.4531(c)(1) and (2) of the NPA. Proposed amended §213.33(g) also provides that all penalties at the upper range of the sanctions set forth in the guidelines, such as suspension, revocation, or surrender, include lesser penalties, i.e., fine, remedial education, or probation, which may also be included in the final penalty at the Board's discretion. Proposed amended §213.33(g)(2) provides that the Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions under the authority of §301.453(a) and (b) of the NPA: (i) denial of the person's application for a license, license renewal, reinstatement of a revoked, suspended, or surrendered license, or temporary permit; (ii) approval of the person's application for a license, license renewal, reinstatement of a revoked, suspended, or surrendered license, or temporary permit; (iii) setting reasonable probationary stipulations as a condition of the issuance, reinstatement, or renewal of the license or temporary permit, including: (A) submitting to an evaluation as outlined in §213.33(e) and (f) or pursuant to the Occupations Code §301.4521; and (B) abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; (iv) determining, in accordance with §301.468 of the NPA, that an order denying a license application, license renewal, or temporary permit be probated; (v) issuance of a Warning, which shall include reasonable probationary stipulations which may include abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; (vi) issuance of a Reprimand, which shall include reasonable probationary stipulations which may include abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; and (vii) suspension of the person's license, which may be: (A) enforced and active for a specific period; or (B) probated with reasonable probationary stipulations as a condition for lifting or staying the order of suspension, including submitting to an evaluation as outlined in §213.33(e) and (f) or pursuant to the Occupations Code §301.4521 and abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis.
Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments are in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, there will be public benefits, and there will be potential costs for individuals required to comply with the proposal.
The anticipated public benefits will be the adoption of requirements that: (i) implement HB 3961; (ii) promote clarity and consistency among existing Board policies, procedures, and requirements; (iii) enable the Board to make fair and consistent determinations in disciplinary cases, which results in more effective regulation; and (iv) ensure the protection of the public health, safety, and welfare. First, HB 3961 and the proposed amendments to §213.33(e) and (f) authorize the Board to request an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, or in circumstances where an individuals's prior criminal history, unprofessional conduct, or good professional character is at issue. The Board is charged with protecting the health, safety, and welfare of the public from the unsafe, incompetent, unethical, or illegal conduct of licensees and individuals subject to Chapter 301. When an individual has exhibited impaired behavior, either due to chemical dependency or the abuse of alcohol or drugs, or due to a physical or mental condition, the Board has a responsibility to remove the individual from all nursing duties involving direct patient care until the individual is deemed safe to return to those duties. Further, when an individual has exhibited unprofessional character, including criminal conduct, the Board has a responsibility to ensure that the individual does not pose a risk to the public's safety. The Board is particularly concerned about an individual's impaired behavior and unprofessional character and conduct as it relates to the individual's nursing practice, as such behaviors may place vulnerable members of the public in danger and could affect the individual's ability to safely care for patients. The proposed amendments to §213.33(e) and (f), which implement the provisions and requirements of HB 3961, provide the Board with an additional tool for determining whether an individual is safe to practice nursing. The proposed amendments to §213.33(e) and (f) prescribe the specific circumstances in which the Board will request an individual to submit to a physical or mental evaluation. Further, the proposed amendments to §213.33(e) and (f) implement necessary safeguards to ensure that all evaluations are based upon reliable, verifiable, and objective information. The proposed amendments to §213.33(e) and (f) also ensure that an evaluation is conducted by an appropriately trained provider who specializes in the specific area relevant to the requested evaluation. These proposed requirements are designed to ensure that an appropriately trained provider conducts an evaluation based upon verifiable, objective data. The proposed amendments to §213.33(e) and (f) also require an evaluator to be familiar with the duties appropriate to the nursing profession. This proposed requirement is especially important because the evaluator is assessing the settings in which the individual may work, the specific tasks that the individual must be able to perform in those setting, and the skills and judgment that the individual must utilize as part of his or her daily routine. Further, the evaluator, in understanding the complexities associated with providing direct patient care in those settings, is assessing whether the individual can safely perform his or her nursing responsibilities. The proposed requirements to §213.33(e) and (f) also assist the Board in determining whether an individual is likely to be able to comply with the Nursing Practice Act and the Board's policies and rules in the future. This is a very important factor for the Board to consider, as the Board is especially concerned with the likelihood that dangerous or unsafe behavior may be repeated in the future. Further, an evaluator's recommendation regarding whether an individual should be subject to Board monitoring and supervision is also an important factor for the Board to consider. Although the Board considers the totality of factors present in each disciplinary case, the information and data obtained during an evaluation, including the evaluator's conclusions and recommendations, are invaluable in assisting the Board in determining whether the individual is safe to practice nursing, and, if so, under what circumstances. Very often, an evaluation produces information that is beyond the Board's knowledge prior to the evaluation. Such additional information permits the Board to review the totality of the circumstances in each disciplinary case, which enables the Board to make better decisions regarding the appropriate remedy in the case. When the Board is able to consider all of the factors that are relevant in a case, the Board is better able to determine if, and under what circumstances, an individual should be permitted to continuing practicing nursing. Further, the Board is better able to protect the interests of the public when it can ensure that a nurse is safe to practice and when appropriate monitoring and supervision requirements can be implemented to ensure that the individual remains safe while providing patient care. The proposed amendments to §213.33(e) and (f) allow the Board to obtain the best information available in a disciplinary matter. Further, the proposed amendments to §213.33(e) and (f) ensure that the conclusions and recommendations provided to the Board are based upon reliable, verifiable, and objective information. In this way, the Board is better able to resolve disciplinary cases in a fair and efficient manner, which results in more consistent and effective regulation. The proposed amendments to §213.33(g) are necessary to ensure consistency among Board policies, procedures, and requirements in disciplinary matters and to clarify existing Board policy regarding random drug screening. Such consistency results in fair and efficient regulation, which benefits all regulated individuals, as well as the public at large. Further, by clarifying the Board's existing policy that all random drug screening must be verified through urinalysis, the Board is providing appropriate notice to all regulated individuals of the Board's existing policies and expectations in this regard, which also results in fair and consistent regulation.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposal authorizes the Board to: (i) require an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol; and (ii) request an individual to submit to a physical or psychological evaluation if the Board believes that the individual is unable to practice nursing safely for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. The proposal also (i) identifies the circumstances in which an evaluation may be required or requested by the Board under new §301.4521, (ii) specifies the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521, and (iii) prescribes the required components of an evaluation under new §301.4521. Not every individual regulated under Chapter 301 will be subject to the proposal. Only those individuals who (i) are involved in a disciplinary matter before the Board and (ii) are requested or required to submit to a physical or psychological evaluation under new §301.4521 will be affected by the proposal. There will be associated costs of compliance with the proposal for such individuals. The probable costs associated with the proposed amendments result from proposed new §213.33(e), (f), and (g).
Proposed amended §213.33(e) and (f) prescribe the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521. Further, proposed amended §213.33(e) and (f) specify the criteria that an evaluation must meet under new §301.4521. Specifically, the proposed amendments to §213.33(e) and (f) require an evaluation under new §301.4521 to be conducted by a Board approved addictionologist, addictionist, treatment evaluator, physician, medical doctor, neurologist, osteopathic, psychologist, forensic psychologist, forensic psychiatrist, or psychiatrist. Further, the proposed amendments to §213.33(e) and (f) require the evaluator to be familiar with the duties appropriate to the nursing profession. Additionally, the proposed amendments to §213.33(e) and (f) require an evaluation to be conducted pursuant to professionally recognized standards and methods and to include the utilization of objective tests and instruments which are designed to test an individual's psychological stability, fitness to practice, professional character, and veracity. If an individual is requested to submit to an evaluation under new §301.4521, the total probable cost to comply with the proposed amendments will vary substantially among individuals, primarily based upon the cost assessed by the particular evaluator performing the requested evaluation. The Board generally estimates that an evaluation under new §301.4521 may cost between $850 - $2,000. However, the Board anticipates that the probable costs of an evaluation under new §301.4521 will vary substantially from provider to provider, based upon the following factors: (i) the type and nature of the evaluation; (ii) the type of provider that is qualified to perform the evaluation; (iii) the availability of a qualified provider to conduct the evaluation; (iv) the amount and type of objective tests utilized by an evaluator; (v) the geographic location of the individual; (vi) the geographic location of the evaluator; (vii) whether an evaluator performs evaluations on a frequent basis; (viii) the familiarity of an evaluator with the requirements of new §301.4521, the proposed amendments, and Board policies and procedures; (ix) the complexity of the issues in the case; (x) the history of the individual; (xi) the amount of time it will take for the evaluator to conduct the evaluation, including the administration of objective tests; and (xii) the amount of time it will take the evaluator to prepare his or her report. The proposed amendments to §213.33(e) and (f) establish the credentials that a provider must possess in order to perform an evaluation under new §301.4521. The proposed amendments also prescribe the criteria that an evaluation under new §301.4521 must meet. However, the Board is not requiring an individual to obtain an evaluation from a particular evaluator. Although the Board maintains a list of pre-approved evaluators who may conduct an evaluation, an individual is not obligated to obtain an evaluation from one of the listed providers. An individual may choose to obtain an evaluation from any provider, so long as the provider meets the proposed requirements of §213.33(e) and (f) and new §301.4521. As such, each individual is free to choose the most economical way to obtain an evaluation under new §301.4521 and the proposed amendments. Each individual also has the information necessary to estimate his or her own compliance costs. Further, new §301.4521(i) states that an individual shall pay the costs of an evaluation conducted under new §301.4521. Any other costs to comply with the proposal result from the enactment of the Occupations Code Chapter 301 and are not a result of the adoption, enforcement, or administration of the proposal. Proposed amended §213.33(g) clarifies that all random drug screening must be verified through urinalysis. This proposed amendment does not alter the Board's existing policy regarding random drug screening. As a result, the Board does not anticipate that the proposed amendments to §213.33(g) will alter the costs that are being incurred by individuals currently subject to random drug screening. Nevertheless, individuals who are subject to random drug screening will incur costs of compliance with proposed amended §213.33(g). The Board estimates that the probable costs of compliance with proposed amended §213.33(g) will vary from individual to individual based upon the (i) length of time that an individual must submit to random drug screening and (ii) the number of screens that an individual must submit. An individual will typically be required to submit to random drug screening for a period of 1 - 3 years. During this time, an individual will be required to test once a week for the first three month period. An individual will be required to test twice a month for the next three month period. An individual will be required to test once a month for the next six month period. An individual will be required to test once a quarter for the remainder of the testing period. The Board estimates that each test will cost $46. Based upon this estimate, the Board anticipates that a one year testing period will cost approximately $1,152; a two year testing period will cost approximately $1,336; and a three year testing period will cost approximately $1,520. Although individuals are not typically required to test beyond three years, there may be instances where a longer testing period is required. In those situations, the Board estimates that it will cost an individual an additional $184 per year to complete the required random screens. Further, if an individual is required to re-submit a screen for any reason, each screen is anticipated to cost an additional $46. Any other costs to comply with the proposal result from the enactment of the Occupations Code Chapter 301 and are not a result of the adoption, enforcement, or administration of the proposal.
As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposal because no individual, Board regulated entity, or other entity required to comply with the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or §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 individuals regulated under Chapter 301. Because such individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual regulated under Chapter 301 qualifies as a micro business or small business under the Government Code §2006.001(1) or §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 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 §§301.452, 301.4521, 301.453, 301.4531, 301.501, 301.452, and 301.151. The Occupations Code §301.452(a) defines intemperate use to include practicing nursing or being on duty or on call while under the influence of alcohol or drugs. The Occupations Code §301.452(b) provides that a person is subject to denial of a license or to disciplinary action under Subchapter J for: (i) a violation of Chapter 301, a rule or regulation not inconsistent with Chapter 301, or an order issued under Chapter 301; (ii) fraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing; (iii) a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony or for a misdemeanor involving moral turpitude; (iv) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude; (v) use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered; (vi) impersonating or acting as a proxy for another person in the licensing examination required under §301.253 or §301.255; (vii) directly or indirectly aiding or abetting an unlicensed person in connection with the unauthorized practice of nursing; (viii) revocation, suspension, or denial of, or any other action relating to, the person's license or privilege to practice nursing in another jurisdiction; (ix) intemperate use of alcohol or drugs that the board determines endangers or could endanger a patient; (x) unprofessional or dishonorable conduct that, in the Board's opinion, is likely to deceive, defraud, or injure a patient or the public; (xi) adjudication of mental incompetency; (xii) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or (xiii) failure to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the board's opinion, exposes a patient or other person unnecessarily to risk of harm. The Occupations Code §301.452(c) provides that the Board may refuse to admit a person to a licensing examination for a ground described under §301.452(b). The Occupations Code §301.452(d) requires the Board, by rule, to establish guidelines to ensure that any arrest information, in particular information on arrests in which criminal action was not proven or charges were not filed or adjudicated, that is received by the Board under §301.452 is used consistently, fairly, and only to the extent the underlying conduct relates to the practice of nursing. The Occupations Code §301.4521(a) defines the term applicant as a petitioner for a declaratory order of eligibility for a license or an applicant for an initial license or renewal of a license and the term evaluation as a physical or psychological evaluation conducted to determine a person's fitness to practice nursing. The Occupations Code §301.4521(b) provides that the Board may require a nurse or applicant to submit to an evaluation only if the Board has probable cause to believe that the nurse or applicant is unable to practice nursing with reasonable skill and safety to patients because of: (i) physical impairment; (ii) mental impairment; or (iii) chemical dependency or abuse of drugs or alcohol. The Occupations Code §301.4521(c) provides that a demand for an evaluation under §301.4521(b) must be in writing and state: (i) the reasons probable cause exists to require the evaluation; and (ii) that refusal by the nurse or applicant to submit to the evaluation will result in an administrative hearing to be held to make a final determination of whether probable cause for the evaluation exists. The Occupations Code §301.4521(d) states that, if the nurse or applicant refuses to submit to the evaluation, the Board shall schedule a hearing on the issue of probable cause to be conducted by the State Office of Administrative Hearings. The nurse or applicant must be notified of the hearing by personal service or certified mail. The hearing is limited to the issue of whether the Board had probable cause to require an evaluation. The nurse or applicant may present testimony and other evidence at the hearing to show why the nurse or applicant should not be required to submit to the evaluation. The Board has the burden of proving that probable cause exists. At the conclusion of the hearing, the hearing officer shall enter an order requiring the nurse or applicant to submit to the evaluation or an order rescinding the Board's demand for an evaluation. The order may not be vacated or modified under the Government Code §2001.058. The Occupations Code §301.4521(e) states that, if a nurse or applicant refuses to submit to an evaluation after an order requiring the evaluation is entered under §301.4521(d), the Board may: (i) refuse to issue or renew a license; (ii) suspend a license; or (iii) issue an order limiting the license. The Occupations Code §301.452(f) provides that the Board may request a nurse or applicant to consent to an evaluation by a practitioner approved by the Board for a reason other than a reason listed in §301.4521(b). A request for an evaluation under §301.4521(f) must be in writing and state: (i) the reasons for the request; (ii) the type of evaluation requested; (iii) how the Board may use the evaluation; (iv) that the nurse or applicant may refuse to submit to an evaluation; and (v) the procedures for submitting an evaluation as evidence in any hearing regarding the issuance or renewal of the nurse's or applicant's license. The Occupations Code §301.4521(g) states that, if a nurse or applicant refuses to consent to an evaluation under §301.4521(f), the nurse or applicant may not introduce an evaluation into evidence at a hearing to determine the nurse's or applicant's right to be issued or retain a nursing license unless the nurse or applicant: (i) not later than the 30th day before the date of the hearing, notifies the Board that an evaluation will be introduced into evidence at the hearing; (ii) provides the Board the results of that evaluation; (iii) informs the Board of any other evaluations by any other practitioners; and (iv) consents to an evaluation by a practitioner that meets board standards established under §301.4521(h). The Occupations Code §301.4521(h) provides that the Board shall establish by rule the qualifications for a licensed practitioner to conduct an evaluation under §301.4521. The Board shall maintain a list of qualified practitioners. The Board may solicit qualified practitioners located throughout the state to be on the list. The Occupations Code §301.4521(i) states that a nurse or applicant shall pay the costs of an evaluation conducted under §301.4521. The Occupations Code §301.4521(j) provides that the results of an evaluation under §301.4521 are: (i) confidential and not subject to disclosure under the Government Code Chapter 552; (ii) not subject to disclosure by discovery, subpoena, or other means of legal compulsion for release to anyone, except that the results may be: (A) introduced as evidence in a proceeding before the board or a hearing conducted by the State Office of Administrative Hearings under Chapter 301; or (B) included in the findings of fact and conclusions of law in a final board order. The Occupations Code §301.4521(k) provides that, if the Board determines there is insufficient evidence to bring action against a person based on the results of any evaluation under this section, the evaluation must be expunged from the Board's records. The Occupations Code §301.4521(l) requires the Board to adopt guidelines for requiring or requesting a nurse or applicant to submit to an evaluation under §301.4521. The Occupations Code §301.4521(m) states that the authority granted to the Board under §301.4521 is in addition to the Board's authority to make licensing decisions under this chapter. The Occupations Code §301.453(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 §301.453(b) provides that, in addition to or instead of an action under §301.453(a), the Board, by order, may require the person to: (i) submit to care, counseling, or treatment by a health provider designated by the Board as a condition for the issuance or renewal of a license; (ii) participate in a program of education or counseling prescribed by the Board; (iii) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board; or (iv) perform public service the Board considers appropriate. The Occupations Code §301.453(c) provides that the Board may probate any penalty imposed on a nurse and may accept the voluntary surrender of a license. The Board may not reinstate a surrendered license unless it determines that the person is competent to resume practice. The Occupations Code §301.453(d) states that if the Board suspends, revokes, or accepts surrender of a license, the Board may impose conditions for reinstatement that the person must satisfy before the Board may issue an unrestricted license. 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 §301.151 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:
Sections 213.20, 213.29, 213.30, and 213.33 - Statutes §§301.452, 301.4521, 301.453, 301.4531, 301.501, 301.502, and 301.151.
§213.20.Informal Proceedings and Alternate Dispute Resolution (ADR).
(a) - (g) (No change.)
(h) Referral to peer assistance after report to the Board.
(1) A nurse required to be reported under Texas Occupations Code Annotated §§301.401 - 301.409, may obtain informal disposition through referral to a peer assistance program as specified in Texas Occupations Code Annotated §301.410, as amended, if the nurse:
(A) - (B) (No change.)
(C) makes a written contract with the Board of
Nursing [Nurse Examiners
] through its executive director promising to:
(i) undergo and pay for such physical and mental evaluations
as the [executive director or the
] peer assistance program determines [determine
] to be reasonable and necessary
to evaluate the nurse's impairment; to plan, implement and monitor
the nurse's rehabilitation; and, to determine if, when and under what
conditions the nurse can safely return to practice;
(ii) - (iv) (No change.)
(2) - (3) (No change.)
(i) - (l) (No change.)
§213.29.Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters.
(a) - (b) (No change.)
(c) If a registered or vocational nurse is reported to the Board for intemperate use, abuse of drugs or alcohol, or diagnosis of or treatment for chemical dependency; or if a person is unable to sign the certification in subsection (b) of this section, the following restrictions and requirements apply:
(1) Any matter before the Board that involves an allegation
of chemical dependency, or misuse or abuse of drugs or alcohol, will
require at a minimum that such person obtain for Board review an
evaluation that meets the criteria of §213.33 of this chapter
(relating to Factors Considered for Imposition of Penalties/Sanctions) [
a chemical dependency evaluation performed by a licensed chemical
dependency evaluator or other professional approved by the executivedirector];
(2) - (4) (No change.)
(d) It shall be the responsibility of those persons
subject to this rule to submit to and pay for an evaluation that
meets the criteria of §213.33 of this chapter [by
a professional approved by the executive director to determine current
sobriety and fitness. The evaluation shall be limited to the conditions
mentioned in subsection (b) of this section].
(e) - (j) (No change.)
§213.30.Declaratory Order of Eligibility for Licensure.
(a) (No change.)
(b) The person must submit a petition or application on forms provided by the Board which includes:
(1) - (2) (No change.)
(3) if the potential ineligibility is due to mental
illness, evidence of an evaluation that meets the criteria of §213.33
of this chapter (relating to Factors Considered for Imposition of
Penalties/Sanctions) and [, including a prognosis, by a
psychologist or psychiatrist,] evidence of treatment[,
including any medication];
(4) if the potential ineligibility is due to chemical dependency including alcohol, evidence of an evaluation that meets the criteria of §213.33 of this chapter and treatment, after care and support group attendance; and
(5) (No change.)
(c) - (i) (No change.)
§213.33.Factors Considered for Imposition of Penalties/Sanctions [ and/or Fines ].
(a) The following factors shall be considered by the
executive director when determining the appropriate penalty/sanction
in disciplinary cases [whether to dispose of a disciplinary
case by fine or by fine and stipulation and the amount of such fine].
These factors shall also be used by the State Office of
Administrative Hearings (SOAH) when recommending a sanction and the
Board in determining the appropriate penalty/sanction in disciplinary cases:
(1) - (6) (No change.)
(7) the length of time the person [licensee] has practiced;
(8) - (9) (No change.)
(10) attempts by the person [licensee]
to correct or stop the violation;
(11) - (13) (No change.)
(b) - (d) (No change.)
(e) If the Board has probable cause to believe
that a person is unable to practice nursing with reasonable skill
and safety because of physical impairment, mental impairment, chemical
dependency, or abuse of drugs or alcohol [When determining
evidence of present fitness to practice], the Board [or
Executive Director] may require an evaluation by a Board-approved
addictionologist, addictionist, treatment evaluator, physician, medical
doctor, neurologist, osteopathic, psychologist, forensic
psychologist, forensic psychiatrist, or psychiatrist, with
credentials appropriate for the specific evaluation requested [
who is licensed by the Texas State Board of Examiners of Psychologists
or the Texas Medical Board, respectively]. The evaluator must
be familiar with the duties appropriate to the nursing profession.
The evaluation must be conducted pursuant to professionally recognized
standards and methods. The evaluation must include the utilization
of objective tests and instruments which at a minimum are designed
to test the psychological stability, fitness to practice, professional
character, and veracity of the person subject to evaluation [
applicant or licensee]. If applicable, the evaluation must
include information regarding the person's prognosis and medication
regime. The person [applicant or licensee]
subject to evaluation shall sign a release allowing the evaluator
to review the file compiled by the Board staff and a release that
permits the evaluator to release the evaluation to the Board. The
person subject to evaluation [applicant or licensee] should
be provided a copy of the evaluation upon completion by the evaluator;
if not, the Board will provide the person [individual] a copy.
(f) When determining evidence of present fitness to
practice because of known or reported unprofessional conduct,
lack of good professional character, or prior criminal history [
by a licensee or applicant for licensure]:
(1) The [the] Board [or
Executive Director] may request an evaluation [
individual risk assessment
] conducted by a Board-approved forensic psychologist
or forensic psychiatrist who:
(A) evaluates the behavior in question or the
prior criminal history of the [a] person;
[and]
(B) seeks to predict:
(i) the likelihood that the person
subject to evaluation will engage in
the behavior in question or criminal
activity again, which may [that may
] result in the person
committing a second or subsequent reportable violation
or receiving a second or subsequent reportable adjudication
or conviction; and
(ii) the continuing danger, if any, that the person
poses to the community;[.]
(C) is familiar with the duties appropriate to the
nursing profession;[.]
(D) conducts the evaluation pursuant to professionally recognized standards and methods; and
(E) utilizes objective tests and instruments that,
at a minimum, are designed to test the psychological stability, fitness
to practice, professional character, and/or veracity of the
person subject to evaluation [
nurse applicant or licensee].
(2) The person [applicant or licensee]
subject to evaluation shall sign a release allowing the evaluator
to review the file compiled by [the] Board staff and a
release that permits the evaluator to release the evaluation to the Board.
(3) The person subject to evaluation [applicant
or licensee] should be provided a copy of the evaluation upon
completion by the evaluator; if not, the Board will provide the
person [individual] a copy.
(4) The provisions of the Occupations Code §301.4521 apply to an evaluation requested under this subsection.
(g) In accordance with the provisions of the [Texas]
Occupations Code and the Nursing Practice Act (NPA), and in keeping
with the obligation to protect the consumer of nursing services from
the unsafe, incompetent or unprofessional nurse, the Board [
of Nursing
] has adopted the following recommended guidelines for
disciplinary orders and conditions of probation for violations of
the NPA. The purpose of these guidelines is to give notice [
to licensees] of the range of penalties which will normally be
imposed for [upon] violations of the provisions
in the Occupations Code Chapter 301, Subchapter J.
These [The
] disciplinary guidelines are based upon a single count violation
of each provision listed. Multiple violations of the same provision
or rule, or other unrelated violations included in the administrative
complaint, will be grounds for an enhancement of penalties subject
to §301.4531(c)(1) and (2)[,] of the NPA. All penalties
at the upper range of the sanctions set forth in the guidelines, such
as suspension, revocation, or surrender, include lesser penalties,
i.e., fine, remedial education, or probation, which may also be included
in the final penalty at the Board's discretion.
(1) (No change.)
(2) The Board may, upon the finding of a violation,
enter an order imposing one or more of the following disciplinary
actions under the authority of §301.453(a) and (b)[,]
of the NPA:
(A) Denial of the person's application for a license, license renewal, reinstatement of a revoked, suspended, or surrendered license, or temporary permit;
(B) Approval of the person's application for a license,
license renewal, reinstatement of a revoked, suspended, or
surrendered license, or temporary permit; and set reasonable probationary
stipulations as a condition of issuance, reinstatement, or
renewal of the license or temporary permit. Additionally, the Board
may determine, in accordance with §301.468[,]
of the NPA, that an order denying a license application, license renewal,
or temporary permit be probated. Reasonable probationary stipulations
may include, but are not limited to:
(i) (No change.)
(ii) submit to an evaluation as outlined in
subsections [subsection] (e)
and (f) of this section or pursuant to the Occupations Code §301.4521;
(iii) - (v) (No change.)
(vi) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(vii) (No change.)
(C) Issuance of a Warning. The issuance of a Warning shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:
(i) - (iii) (No change.)
(iv) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(v) (No change.)
(D) Issuance of a Reprimand. The issuance of a Reprimand shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:
(i) - (iii) (No change.)
(iv) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(v) (No change.)
(E) (No change.)
(F) Suspension of the person's license. The Board may determine that the order of suspension be enforced and active for a specific period or probated with reasonable probationary stipulations as a condition for lifting or staying the order of suspension. Reasonable probationary stipulations may include, but are not limited to, one or more of the following:
(i) (No change.)
(ii) submit to an evaluation as outlined in
subsections [subsection] (e)
and (f) of this section
or pursuant to the Occupations Code §301.4521;
(iii) - (v) (No change.)
(vi) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(vii) (No change.)
(G) - (M) (No change.)
(h) (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 31, 2009.
TRD-200903844
James W. Johnston
General Counsel
Texas Board of Nursing
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6811
CHAPTER 323. POWERS AND DUTIES OF THE BOARD
The Texas Board of Physical Therapy Examiners proposes an amendment to §323.3, Adoption of Rules. The amendment would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session, and to delete a statement regarding the specific fees to be set by the board for administration of the continuing education approval process.
John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no additional costs to state or local governments as a result of enforcing or administering this amendment.
Mr. Maline has also determined that for each year of the first five-year period this amendment is in effect the public benefit will be consistency in the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.
Comments on the proposed amendment may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.
The amendment is proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by this amendment.
§323.3.Adoption of Rules.
(a) The board may adopt rules consistent with the Physical Therapy Practice Act to carry out its duties in administering the Act.
(b) Continuing competence [education].
The board may adopt rules relating to the approval of continuing
competence activities [education courses]. The board may establish
reasonable and necessary fees for the administration of the approval
of continuing competence activities [education programs
at a minimum of $40 and not to exceed $200 per course submitted to
the board for approval].
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 28, 2009.
TRD-200903820
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §329.5, Licensing Procedures for Foreign-Trained Applicants. The amendments would eliminate the requirement for a prescreening certificate, remove the two-year limit on the validity of a completed evaluation, delete specific details of the education evaluation requirements and make it clear that a foreign-trained applicant must meet the educational requirements as delineated in the appropriate version of the Federation of State Boards of Physical Therapy's coursework tool, establishes that the board will issue a license only to an applicant located in the US, increases the number of hours or courses for which college placement tests may be used, and makes clear that the board retains the right to make the determination of equivalency and does not delegate that authority to any other body. It also allows graduates of a foreign CAPTE-accredited program an exemption from the English language proficiency requirements and removes the requirement that an applicant provide proof of licensure in good standing in the country of education.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendment is in effect the public benefit will be eligibility requirements for foreign-trained applicants which will be less onerous that the current ones, therefore making it likelier that more applicants will come to the state to practice. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment. There are no anticipated costs to individuals who are required to comply with the amendment as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§329.5.Licensing Procedures for Foreign-Trained Applicants.
(a) A foreign-trained applicant must complete the license application process as set out in §329.1 of this title (relating to General Licensing Procedure), if applying for licensure by examination, or as set out in §329.6 of this title (relating to Licensure by Endorsement), if applying for licensure by endorsement.
(b) The board will issue a license only after the applicant is physically in the United States and has met all requirements for the license.
(c) Designated representative letter.
(1) An applicant may designate a person as a representative by providing in writing to the board the name, telephone number, and address of the person and by stating in the letter that the person will be the designated representative for the applicant.
(2) This letter must be notarized by a notary of the country in which the applicant resides and sent directly to the board. A copy should be sent to the representative by the applicant.
(3) A designated representative may obtain confidential information regarding the application.
(4) A designated representative of an applicant will remain so until the applicant receives his permanent license or until the board is notified in writing by the applicant that the designated representative has been eliminated or replaced. An applicant may have only one designated representative at any time.
(5) The designated representative is not required by the board to have power of attorney for the applicant. A person who does have power of attorney for an applicant may not submit any document that is required by the board to be signed by the applicant and notarized. Documents submitted by a person with power of attorney for the applicant must be submitted in accordance with all requirements set by the Act and rules regarding these documents. Any falsification of documents required for licensing submitted by a designated representative or a person with power of attorney for the applicant may result in denial of license or other penalties to the applicant.
(d) Credentials evaluation. A foreign trained applicant must submit to the board a credentials evaluation of professional education and training prepared by a Board-approved credentialing entity. The board will maintain a list of approved credentialing entities on the agency website. It is the applicant's responsibility to pay the expenses associated with the credentials evaluation.
(1) The credentials evaluation must provide evidence and documentation that the applicant's education outside a state or territory of the United States is substantially equivalent to the education of a physical therapist who graduated from a physical therapy education program accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE). The evaluation must also establish that the institution at which the applicant's received his physical therapy education is recognized by the Ministry of Education or the equivalent agency in that country.
(2) To determine substantial equivalency, the approved credentialing evaluation entity shall use the Course Work Tool (CWT) adopted by the Federation of State Boards of Physical Therapy.
(A) The entity may use the version of the CWT in place at the time the foreign-trained applicant graduated from his physical therapy program, or the latest edition of the CWT, at the request of the applicant.
(B) If the applicant's education has already been evaluated using an appropriate version of the CWT and all educational requirements were met, the board will accept a copy of the evaluation from an approved credentialing entity or a state in which the applicant holds or has held a physical therapy license.
(3) If the credentialing entity determines that the physical therapy education is substantially equivalent, but no evidence is found of specific required courses or content areas, the applicant is responsible for remedying those deficiencies. The applicant may use college credit obtained through College Level Examination Placement (CLEP) or other college advanced placement exams to complete up to 14 hours, but no more than 4 courses, of general education requirements.
(4) If the applicant received an entry-level physical therapy degree from a CAPTE-accredited program located outside the U.S., the program is considered equivalent to a domestic CAPTE-accredited physical therapy program, and the applicant is exempt from meeting the requirements of the CWT.
(5) An evaluation prepared by board-approved credentialer reflects only the findings and conclusions of the credentialer, and shall not be binding on the board. In the event that the board determines that the applicant's education is not substantially equivalent to an entry-level physical therapy program accredited by CAPTE, the board will notify the applicant in writing stating the reasons why the applicant's education is not substantially equivalent.
(e) English language proficiency. A foreign-trained applicant must demonstrate his ability to communicate in English by making the minimum score accepted by the board on the TOEFL tests administered by the Educational Testing Service (ETS). Minimum acceptable scores are as follows: Paper based TOEFL tests (pbt) - TOEFL (reading/comprehension) 580; TWE (writing/essay) 5.0; TSE (speaking) 55; Computer-based TOEFL tests (cbt) - TOEFL (reading/comprehension) 237; TWE (writing/essay) 5.0; TSE (speaking) 55; Internet-based (ibt) - Writing 24; Speaking 26; Reading Comprehension 21; Listening Comprehension 18.
(1) This requirement is waived for graduates of entry-level physical therapy programs in Australia, Canada (except Quebec), Ireland, New Zealand and the United Kingdom, and for graduates of entry-level programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) at time of graduation. For graduates of entry-level physical therapy programs in other countries, the Board may grant an exception to the English language proficiency requirements under the following conditions:
(A) the applicant holds a current license in physical therapy in another state and has been licensed in the another state in the U.S. for 10 years prior to application.
(B) The applicant submits satisfactory proof that he/she is a citizen or lawful permanent resident of the U.S., and has attended four or more years of secondary or post-secondary education in the U.S.
(2) With a score of 50 on the paper-based and computer-based Test of Spoken English (TSE), the board will allow the applicant to submit three original, notarized letters of recommendation from individuals who have practical knowledge of the applicant's ability to communicate successfully in spoken English. Individuals who provide this written testimony must be native English speakers, cannot be related by blood or marriage to the applicant, and at least one of the letters must be from a PT licensed to practice in the U.S. These letters must be submitted by their authors directly to the board. At the board's discretion, the letters may be considered satisfactory evidence of proficiency in spoken English.
[(a) The provisions of §329.1
of this title apply to foreign-trained applicants.]
[(b) If required by §343 of the U.S. Illegal Immigration Reform and Immigrant Responsibility Act, the foreign-trained applicant must present a prescreening certificate issued by a board-approved prescreening entity. The board will establish by policy a list of board-approved prescreening entities, which will be made available to foreign-trained applicants on request.]
[(c) The foreign-trained applicant's educational credentials and qualifications will be evaluated by a board-approved credentialing entity in accordance with the requirements of subsection (f) of this section. The board will establish by policy a list of approved credentialing entities. In the event that the credentialer does not adhere to the guidelines of subsection (f) of this section, the Board may override the evaluation. An evaluation by a board-approved education credentialing entity is valid for the purpose of licensing in this state for not more than two years after the date of issuance of the evaluation.]
[(d) After arrival in the United States, the applicant must submit a United States residential address and pay all remaining fees. Only after the applicant has arrived in the United States will the board approve registration for the national exam.]
[(e) Designated representative letter.]
[(1) An applicant may designate a person as a representative by providing in writing to the board the name, telephone number, and address of the person and by stating in the letter that the person will be the designated representative for the applicant.]
[(2) This letter must be notarized by a notary of the country in which the applicant resides and sent directly to the board. A copy should be sent to the representative by the applicant.]
[(3) A designated representative may obtain confidential information regarding the application.]
[(4) A designated representative of an applicant will remain so until the applicant receives his permanent license or until the board is notified in writing by the applicant that the designated representative has been eliminated or replaced. An applicant may have only one designated representative at any time.]
[(5) The designated representative is not required by the board to have power of attorney for the applicant. A person who does have power of attorney for an applicant may not submit any document that is required by the board to be signed by the applicant and notarized. Documents submitted by a person with power of attorney for the applicant must be submitted in accordance with all requirements set by the Act and rules regarding these documents. Any falsification of documents required for licensing submitted by a designated representative or a person with power of attorney for the applicant may result in denial of license or other penalties to the applicant.]
[(f) Guidelines for board-approved education credentialing entities.]
[(1) The credentialing entity will review all of an applicant's post-secondary professional education credentials earned outside of the United States. The entity will evaluate allowable transfer credit for the 13th year based on recommendations of the National Council on the Evaluation of Educational Credentials or on current published reference materials. The applicant must have completed, with a passing grade of A, B, C, Pass or Credit, 60 semester hours credit or the equivalent in general education courses from an accredited institution of higher learning. This requirement may be met by credits earned at U.S. colleges or universities, by College Level Examination Program (CLEP) credits, or Advanced Placement (AP) according to standards of the American Council on Education. The number of credits earned by CLEP or AP may not exceed 12 semester credits.]
[(2) The credentialing entity must attest that the institution attended by the applicant has the recognition of the Ministry of Education or the equivalent in that country.]
[(3) All foreign-trained applicants must demonstrate the ability to communicate in English by making the minimum score accepted by the board on the TOEFL tests. This requirement is waived for graduates of entry-level physical therapy programs in Australia, Canada (except Quebec), Ireland, New Zealand and the United Kingdom, and for graduates of entry-level programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) at time of graduation. For graduates of entry-level physical therapy programs in other foreign countries, the Board may grant an exception to the TOEFL tests if the applicant holds a current license in physical therapy in another state and has been licensed in the U.S. for 10 years prior to application. The Board also may grant an exception to the TOEFL tests to an applicant who submits satisfactory proof that he/she is a citizen or lawful permanent resident of the United States, and has attended four or more years of secondary or post-secondary education in the U.S. Regarding the Paper-based and Computer-based TOEFL tests: If an applicant makes a score of 50 on the TSE, the board will allow the applicant to submit three original, notarized letters of recommendation from individuals who have practical knowledge of the applicant's ability to communicate successfully in spoken English. Individuals who provide this written testimony must be native English speakers, cannot be related by blood or marriage to the applicant, and at least one of the letters must be from a PT licensed to practice in the U.S. These letters must be submitted by their authors directly to the board. At the board's discretion, the letters may be considered satisfactory evidence of proficiency in spoken English. Minimum acceptable scores for the TOEFL tests are as follow:]
[(A) Paper based TOEFL tests (pbt): TOEFL (reading/comprehension) 580; TWE (writing/essay) 5.0; TSE (speaking) 55.]
[(B) Computer-based TOEFL tests (cbt): TOEFL (reading/comprehension) 237; TWE (writing/essay) 5.0; TSE (speaking) 55.]
[(C) Internet-based (ibt): Writing 24; Speaking 26; Reading Comprehension 21; Listening Comprehension 18.]
[(4) The credentialing entity must attest that the applicant is or was licensed or authorized to practice in the country in which the entry-level degree in physical therapy was granted. If there is no licensure or authorization in such country, the applicant must be eligible for unrestricted practice there. The Board may waive this requirement for an applicant who is not licensed in the country of education due to a citizenship requirement of that country.]
[(A) If the application is by examination, the license or authorization in such country must be in good standing and the licensure current.]
[(B) If the application is by endorsement, and the applicant has passed the exam according to Texas standards, the license or other authorization must have been in good standing at the time the license or authorization in such country expired.]
[(5) The credentialing entity adopts the policy of "scaling" as defined by the National Council on the Evaluation of Foreign Educational Credentials, American Association of Collegiate Registrar and Admissions Officers, Washington D.C.; i.e., a year of foreign study is worth no more than a year of American study, regardless of contact hours, or general education is converted to equate to approximately 30-32 United States semester credit hours per year, and professional education to approximately 36 semester credit hours per year.]
[(6) The credentialing entity must use a method to convert classroom hours to semester units which has a ratio no greater than the following: 15 contact lecture hours = one semester unit/hour; 45 contact laboratory hours = one semester unit/hour. When lecture/lab hours are not delineated on the transcript or syllabi, the evaluator may use an appropriate ratio and indicate the ratio used in the evaluation.]
[(7) The credentialing entity must list and assign a grade for each course taken by the applicant, by assigning the grade of A, B, C, D, F, Pass, Fail, Credit or No Credit. Those grades assigned by the credentialing entity must be the grades that are converted to the U.S. equivalent, in accordance with the most current version of the National Association for Foreign Student Affairs Handbook on the Placement of Foreign Graduate Students. The credentialing entity must identify and list those courses which would not transfer to the U.S. as a C or above or Pass or Credit in accordance with the most current version of the National Association for Foreign Student Affairs Handbook on the Placement of Foreign Graduate Students. An applicant must earn a grade of A, B, C, or Pass or Credit in any professional physical therapy education courses. An applicant with a grade of D, F, Fail, or no credit appearing for a professional physical therapy education course on his/her evaluation who has not successfully retaken the course with a grade of A, B, C, Pass or Credit is not eligible for licensure in Texas.]
[(8) The credentialing entity must attest that the applicant has successfully completed an educational program substantially equivalent to U.S. programs accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) and has earned the equivalent of a minimum of 90 semester hours of professional physical therapy education. The program must be post-secondary, requiring for entry the equivalent of high school graduation in the United States; must consist of at least three years of classroom instruction; and must result in the award of the first academic diploma or degree leading to professional practice in physical therapy. The applicant must have completed courses in each of the following broad areas: basic sciences, clinical science, and physical therapy theory and procedures. The applicant must have also successfully completed United States required equivalent courses/hours in clinical education. The applicant must have successfully completed at least 15 semester credit hours in clinical education (upper division level) but will receive credit for no more than 23 semester hours. If the applicant has completed the required course work in clinical education but the transcript does not reflect the required credit hours then the credentialing entity may use the conversion formula of 60 contact hours per one semester credit.]
[(9) If the degree awarded is substantially equivalent to a degree in physical therapy as awarded by CAPTE-accredited programs in regionally accredited colleges and universities in the United States, the credentialing entity must use the Coursework Evaluation Tool for Foreign Educated Physical Therapists (Coursework Evaluation Tool), as developed by the Federation of State Boards of Physical Therapy and modified by the Texas board, when evaluating an applicant's credentials. The version of the tool used must correspond at minimum to the year the entry-level degree was awarded. Deficiencies must be identified and must show the subjects and credit hours necessary to satisfy the requirements of the Coursework Evaluation Tool. If the degree received is from a CAPTE-accredited program located outside the U.S., the program is considered equivalent to a domestic CAPTE-accredited physical therapy program, and the applicant is exempt from meeting the requirements of the Coursework Evaluation Tool.]
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 28, 2009.
TRD-200903821
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes new §329.7, Exemptions from Licensure. The new rule would reflect changes to the Physical Therapy Practice Act made during the 81st legislative session, adding categories of exemptions to the existing list of those who may practice physical therapy in Texas without being licensed by the board, and notification requirements for certain of those exempt categories.
John P. Maline, Executive Director, has determined that for the first five-year period the rule is in effect there will be no additional costs to state or local governments as a result of enforcing or administering the rule.
Mr. Maline has also determined that for each year of the first five-year period the rule is in effect the public benefit will be less administrative burden for those legitimately practicing physical therapy in the state for a short period of time under certain specific circumstances and increased public safety due to greater accountability by specific exempt categories of practitioners. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment. Individuals who qualify in certain exempt categories may now be required to get a Texas license if they plan to remain in the state practicing physical therapy for more than a specific number of days in a 12 month period. They would be required to pay all applicable fees for the license, which would be a new cost incurred. However, other individuals, who heretofore were required to get a license in Texas, will no longer be required to do so if they practice in Texas no longer than the stated number of days.
Comments on the proposed rule may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed rule is published in the Texas Register.
The rule is proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the rule.
§329.7.Exemptions from Licensure.
(a) The following categories of individuals practicing physical therapy in the state are exempt from licensure by the board.
(1) A person practicing physical therapy in the US armed services, US Public Health Service, or Veterans Administration in compliance with federal regulations for licensure of health care providers; and
(2) A person who is licensed in another jurisdiction of the US and who, by contract or employment, is practicing physical therapy in this state for not more than 60 days in a 12 month period for an athletic team or organization or a performing arts company temporarily competing or performing in this state.
(b) The following categories of individuals practicing physical therapy in the state are exempt from licensure by the board and must notify the board of their intent to practice in the state.
(1) A physical therapist who is licensed in good standing in another jurisdiction of the US if the person is engaging, for not more than 90 days in a 12 month period and under the supervision of a physical therapist licensed in this state, in a special project or clinic required for completion of a post-professional degree in physical therapy from an accredited college or university.
(A) The individual must submit written notification stating the following:
(i) the beginning and ending dates of the period of practice;
(ii) the name of the institution or facility in which the individual will be practicing, and
(iii) the name of the supervising physical therapist.
(B) Written notification must be received by the board prior to the start date of the practice.
(2) A physical therapist or a physical therapist assistant who is licensed in good standing in another jurisdiction of the US or authorized to practice physical therapy without restriction in another country if the person is engaging in patient contact and treatment as either an instructor or participant while attending an educational seminar or activity in this state for not more than 60 days in a 12 month period.
(A) The individual must submit written notification stating the following:
(i) the beginning and ending dates of the educational activity;
(ii) the name of the course or activity sponsor, and
(iii) the location of the educational activity.
(B) Written notification must be received by the board prior to the start date of the educational activity.
(3) A physical therapist or physical therapist assistant licensed in good standing in another jurisdiction of the US who is practicing physical therapy for not more than 60 days during a declared local, state, or national disaster or emergency.
(A) The individual must submit written notification stating the following:
(i) the beginning and ending dates of the period of practice, and
(ii) the name of the facility in which the individual will be practicing.
(B) Written notification must be received by the board prior to the start date of the practice.
(4) A physical therapist or physical therapist assistant licensed in good standing in another jurisdiction of the US who is displaced from the person's residence or place of employment due to a declared local, state, or national disaster and is practicing physical therapy in this state for not more than 60 days after the date the disaster is declared.
(A) The individual must submit written notification stating the following:
(i) the beginning and ending dates of the period of practice, and
(ii) the name of the facility in which the individual will be practicing.
(B) Written notification must be received by the board prior to the start date of the practice.
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 28, 2009.
TRD-200903822
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.1, Requirements for Renewal. The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session, and add a reference to another section of the rules.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.1.Requirements for Renewal.
(a) Biennial renewal. Licensees are required to renew their licenses every two years by the end of the month in which they were originally licensed. A licensee may not provide physical therapy services without a current license or renewal certificate in hand. If a license expires after all required items are submitted, but before the licensee receives the renewal certificate, the licensee may not provide physical therapy services.
(b) General requirements. The renewal application is not complete until all required items are received by the board. The components required for license renewal are:
(1) a signed renewal application form or the online
equivalent, documenting completion of board-approved continuing
competence activities [education (CE)
], as described in §341.2
of this title, concerning Continuing
Competence Requirements [Education];
(2) the renewal fee, and any late fees which may be due; and
(3) a passing score on the jurisprudence examination.
(c) Notification of license expiration. The board will send notification to each licensee at least 30 days prior to the license expiration date. The licensee bears the responsibility for ensuring that the license is renewed.
(d) Late renewal. A renewal application is late if all required items are not postmarked prior to the expiration date of the license. Licensees who do not submit all required items prior to the expiration date are subject to late fees as described.
(1) If the license has been expired for 90 days or less, the late fee is one-half of the examination fee for the license.
(2) If the license has been expired for more than 90
days but less than one year, the late fee is equal to the examination
fee for the license. Licensees who are more than 90 days late in renewing
a license are not included in the audit
(ref. §341.2(e) of this chapter)
, and must submit documentation of completion
of continuing competence activities [
continuing education] at time of renewal.
(3) If the license has been expired for one year or longer, the person may not renew the license. To obtain a new license, the applicant must take and pass the national examination again and comply with the requirements and procedures for obtaining an original license set by §329.1 of this title (relating to General Licensure Procedure).
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 28, 2009.
TRD-200903823
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.2, Continuing Education Requirements. The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session and define continuing competence.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.2.Continuing Competence [Education] Requirements.
(a) Continuing competence is the lifelong process of maintaining and documenting competence through ongoing self-assessment, development and implementation of a personal learning plan, and subsequent reassessment.
(b) All continuing competence activities submitted to satisfy renewal requirements must be board-approved, as established in §341.3 of this title (relating to Qualifying Continuing Competence Activities).
(c) For each biennial renewal, physical therapists must complete a total of 30 continuing competence units (CCUs); physical therapist assistants must complete a total of 20 CCUs. A CCU is the relative value assigned to continuing competence activities based on specific criteria developed by the board.
(d) Continuing competence activities utilized to fulfill renewal requirements must be completed within the 24 months prior to the license expiration date.
(e) All licensees must complete two CCUs in board-approved programs in ethics and professional responsibility as part of their total continuing competence requirement. Only programs receiving a supplemental ethics approval may be used to meet the ethics/professional responsibility requirement.
(f) The executive council will conduct an audit of a random sample of licensees at least quarterly to determine compliance with continuing competence requirements. Failure to maintain accurate documentation, or failure to respond to a request to submit documentation for an audit within 30 days of the date on the request, may result in disciplinary action by the board. Licensees who are more than 90 days late in renewing a license are not included in the audit, and must submit documentation of continuing competence activities at time of renewal. The board or its committees may request proof of completion of continuing competence activities claimed for renewal purposes at any time from any licensee.
(g) The licensee must retain original completion documents, certificates, or college or university transcripts and syllabi for four years as specified in §341.3 of this title.
[(a) All continuing education (CE)
submitted to satisfy renewal requirements must be board-approved,
as established in §341.3 of this title (relating to Qualifying
Continuing Education).]
[(b) For each biennial renewal, physical
therapists must complete a total of 30 hours of CE; physical therapist
assistants must complete a total of 20 hours of CE.]
[(c) CE taken to fulfill renewal requirements
must be taken within the 24 months prior to the license expiration
date.]
[(d) All licensees must take two
hours of board-approved programs in ethics and professional responsibility
as part of their total CE requirement. Only programs receiving a supplemental
ethics approval may be used to meet the ethics/professional responsibility
CE requirement.]
[(e) The executive council will conduct
an audit of a random sample of licensees at least quarterly to determine
compliance with CE requirements. Failure to maintain accurate documentation,
or failure to respond to a request to submit documentation for an
audit within 30 days of the date on the request, may result in disciplinary
action by the board. Licensees who are more than 90 days late in renewing
a license are not included in the audit, and must submit documentation
of continuing education at time of renewal. The board or its committees
may request proof of CE claimed for renewal purposes at any time from
any licensee.]
[(f) The licensee must retain original
completion documents, certificates, or college or university transcripts
and syllabi for four years as specified in §341.3 of this title.]
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 28, 2009.
TRD-200903824
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.3, Qualifying Continuing Education. The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session, and add information about required components for courses in ethics and professional responsibility.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in language throughout the rules and the Act. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.3.Qualifying Continuing Competence Activities [Education].
(a) Licensees may select from a variety of activities
to fulfill the requirements for continuing competence. These activities
include, but are not limited to: [Continuing education
for the profession of physical therapy is a structured process of
education designed or intended to support the continuous development
of physical therapists and physical therapist assistants, and to maintain
and enhance their professional competence. Continuing education is
professional education that goes beyond their entry-level education
and is applicable to the practice of physical therapy.]
[(b) Programs offered as continuing education (CE).]
(1) Formal continuing education (CE) courses/programs. [
One CEU is defined as ten contact hours.]
(A) [(2)] Program content and
structure must be approved by the board-approved organization, or
be offered by a provider accredited by that organization. Programs
must meet the following criteria:
(i) [(A)] Program content must
be easily recognizable as pertinent to the physical therapy profession
and in the areas of ethics, professional responsibility, clinical
application, clinical management, behavioral science, science, or
risk management.
(ii) [(B)] The content must be
identified by instructional level, i.e., basic, intermediate, advanced.
Program objectives must be clearly written to identify the knowledge
and skills the participants should acquire and be consistent with
the stated instructional level.
(iii) [(C)] The instructional
methods related to the objectives must be identified and be consistent
with the stated objectives.
(iv) [(D)] Programs must be presented
by a licensed health care provider, or by a person with appropriate
credentials and/or specialized training in the field.
(v) [(E)] Program providers are
prohibited from self-promotion of programs, products, and/or services
during the presentation of the program.
(vi) [(F)] The participants must
evaluate the program. A summary of these evaluations must be made
available to the board-approved organization upon request.
(vii) [(G)] Records of each licensee
who participates in the program must be maintained for four years
by the CE sponsor and must be made available to the board-approved
organization upon request.
(B) [(3)] CE programs subject
to this subsection include the following:
(i) [(A)] Traditional on-site CE programs.
(I) [(i)] Documentation for CE
programs must include the name and license number of the licensee;
the title, sponsor, date(s), and location of the course; the number
of CCUs [CEUs] awarded, the signature of an
authorized signer, and the accredited provider or the program approval number.
(II) [(ii)] If selected for audit,
the licensee must submit the specified documentation.
(ii) [(B)] Home study CE programs
(hard copy or web-based).
(I) [(i)] Documentation must
include the name and license number of the licensee; the title, sponsor,
date(s), and instructional format of the course; the number of
CCUs [CEUs
] awarded, the signature of an authorized signer, and the
accredited provider or the program approval number.
(II) [(ii)] If selected for audit,
the licensee must submit the specified documentation.
(iii) [(C)] Regular inservice-type
CE programs over a one-year period where individual sessions are 2
hours or less.
(I) [(i)] Documentation must
include the name and license number of the licensee; the title, sponsor,
date(s), and location of the inservice; the signature of an authorized
signer, and the accredited provider or the program approval number
with the maximum CCUs [CEUs] granted and the
CCU [CEU] value of each session or group of sessions
specified and justified.
(II) [(ii)] Additionally, proof
of attendance to any or all inservice sessions must be provided so
that individual CCUs [CEUs] earned can be calculated
by the program sponsor for submission to the board-approved organization.
(III) [(iii)] If selected for
audit, the licensee must submit the specified documentation.
(iv) [(D)] Large conferences
with concurrent CE programming.
(I) [(i)] Documentation must
include the licensee's name and license number; title, sponsor, date(s);
and location of the conference; the number of CE units awarded, the
signature of an authorized signer, and the accredited provider or
the course approval number.
(II) [(ii)] If selected for audit,
the licensee must submit the specified documentation and proof of
attendance.
(2) [(c)] College or university courses.
(A) [(1)] College or university
courses easily recognizable as pertinent to the physical therapy profession
and in the areas of ethics, professional responsibility, clinical
application, clinical management, behavioral science, science, or
risk management may be submitted by licensees for consideration of
their CC [CE] requirement.
(i) [(A)] Documentation required
for submission includes the course syllabus for each course and an
official transcript. To be considered, the course must be at the appropriate
educational level for the physical therapist or physical therapist assistant.
(ii) [(B)] The licensee should
submit the request to the board-approved organization at least 60
days prior to the license expiration date.
(B) [(2)] One (1.0) CCU [CEU
] is credited for each satisfactorily (grade of C or higher)
completed credit hour. [If course contact hours are specified
in the syllabus, 1.0 CEU is credited for every 10 contact hours in
courses where the licensee earned a grade of C or higher.]
(C) [(3)] Documentation must
include the approval letter from the board-approved organization.
If selected for an audit, the licensee must submit the specified documentation.
(D) [(4)] College or university
sponsored CE programs (no grade, no official transcript) must comply
with paragraph (1)(A) [subsection (b)] of this
subsection [section].
(3) [(d)] Self-directed study.
(A) [(1)] Publications.
(i) [(A)] Publication(s) pertinent
to physical therapy and in the areas of ethics, professional responsibility,
clinical application, clinical management, behavioral science, science,
or risk management written for the professional or lay audience published
within the 24 months prior to the license expiration date may be submitted
by the author(s) for consideration of their CC [CE]
requirement. The author(s) are prohibited from self-promotion of programs,
products, and/or services in the publication.
(ii) [(B)] Publication(s) must
be approved and CCU [CEU] value determined by
the board-approved organization.
(iii) [(C)] Maximum CCU [CEU
] values for types of original publications are as follows:
(I) [(i)] A newspaper article
may be worth up to 0.3 CCU [CEU].
(II) [(ii)] A regional/national
magazine article may be worth up to 1.0 CCU [CEU].
(III) [(iii)] A case study in
a peer reviewed publication, monograph, or book chapter(s) may be
worth up to 2 CCUs [CEUs].
(IV) [(iv)] A research article
in a peer reviewed publication or an entire book may be worth up to
3.0 CCUs [CEUs].
(iv) [(D)] The request and final
publication(s) should be sent to the board-approved organization at
least 60 days prior to the license expiration date. In the event that
the publication's release will occur in the 60 days prior to the license
expiration date, the author(s) may submit the request, publication
in revision form, and letter from the publisher or editor which includes
the expected publication release date. In the event that the publication
is an entire book or book chapter(s), the author must submit the following:
title page, copyright page, entire table of contents, preface or forward
if present, and one book chapter authored by the licensee.
(B) [(2)] Program/Course development,
consultation, or teaching.
(i) [(A)] First time development
or presentation of, and teaching or consultation in, programs such
as institutes, seminars, workshops, conferences, and college or university
courses which are designed to increase professional knowledge in the
field of physical therapy or other related fields may be submitted
for consideration of the CC [CE] requirement.
CCUs [CEUs
] are not available for subsequent development,
consultation, or teaching of the same CE program or college or university course.
(ii) [(B)] Program/Course development,
consultation, or teaching must be approved and CCU [CEU]
value determined by the board-approved organization.
(iii) [(C)] Maximum CCU [CEU
] value cannot exceed twice the value of the CE program or
college or university course.
(iv) [(D)] The licensee should
submit the request with explanation and evidence of the licensee's
roles and responsibilities, along with the CE program approval number,
to the board-approved organization at least 60 days prior to the license
expiration date. In the event that the licensee is requesting approval
for activities not associated with an approved CE program, the licensee
must submit the request along with the program/course objectives,
outline, date(s), and location(s).
(C) Documentation for self-study CE must include supporting evidence for application to the board-approved organization and the resulting approval letter. If selected for audit, the licensee must submit the specified documentation.
(4) [(3)] Residencies, Fellowships,
Examinations, and Practice Review Tools.
(A) The successful completion of a specialty examination
may be submitted for consideration for the CC [CE]
requirement. A list of the specialty examinations that qualify for
CC [CE] will be maintained by the board.
(B) The successful completion of an American Physical
Therapy Association credentialed residency or fellowship program may
be submitted for consideration for the CC [CE]
requirement.
(C) The completion of a Practice Review Tool of the
Federation of State Boards of Physical Therapy may be submitted for
consideration for the CC [CE] requirement unless
the activity is required as a part of a disciplinary action.
(D) Maximum CCU values for Residencies, Fellowships,
Examinations, and Practice Review Tools shall be as follows but shall
not meet the ethics [Ethics CEU] requirement
for license renewal:
(i) Successful completion of a specialty examination
shall be worth up to 3.0 CCUs [CEUs].
(ii) Successful completion of an American Physical
Therapy Association credentialed residency or fellowship program shall
be worth up to 3.0 CCUs [CEUs].
(iii) Completion of a Practice Review Tool of the Federation
of State Boards of Physical Therapy shall be worth up to 1.5
CCUs [CEUs].
(E) The licensee should submit the request to the board-approved organization with explanation and evidence designated by the Board to verify successful completion of the residency, fellowship, or examination.
[(4) Documentation for self-study
CE must include supporting evidence for application to the board-approved
organization and the resulting approval letter. If selected for audit,
the licensee must submit the specified documentation.]
(b) In addition to the appropriate criteria noted in subsection (a), activities submitted to meet the ethics and professional responsibility requirements for license renewal shall include at a minimum the following components.
(1) The theoretical basis for ethical decision-making;
(2) APTA's Code of Ethics and Guide for Professional Conduct;
(3) Legal standards of behavior (including but not limited to the Act and Rules of the TSBPTE); and
(4) Application of content to real and/or hypothetical situations.
(c) [(e)] Accreditation of providers
or approval of continuing competence activities [education
programs, college or university courses, or self-study] by the
board-approved organization.
(1) Pursuant to a Memorandum of Understanding (MOU)
with the board, the Texas Physical Therapy Association (TPTA) shall
act as the board-approved organization and shall be authorized to
accredit providers and to evaluate and approve continuing
competence activities [education programs, college or university courses,
or self-study] for purposes of compliance with mandatory
CC [CE] requirements as set by the board. This authority shall include
authority to give, deny, withdraw and limit accreditation of providers
and approval of competence activities [programs, college
or university courses, or self-study], and to charge and collect
fees as set forth in the MOU and in the statute and rules governing
the board and the practice of physical therapy in Texas.
(2) To be recognized as qualifying for continuing
competence credit an activity [continuing education, a
program, college or university course, or self-study] must be
evaluated and approved by the TPTA, or be offered by a provider accredited
by the TPTA. A program may be approved before or after the licensee
attends it.
(3) To apply for program approval, the licensee or
program sponsor must submit a fee as approved by the board with the
CC [CE] approval application and any additional documentation
as specified in this section to the TPTA. Interested parties may contact
the TPTA in Austin, Texas, (512) 477-1818, www.tpta.org. College or
university courses are exempt from fees.
(4) Use of statements for publicity.
(A) Sponsors of approved activities [programs
] may use the following statement in publicity: "This activity [
course] has been approved by the Texas Board of
Physical Therapy Examiners as meeting continuing competence [
education] requirements for physical therapists and physical
therapist assistants."
(B) Sponsors of programs receiving a supplemental ethics
approval may use the following statement in publicity: "This
activity [course] has been approved by the Texas Board of
Physical Therapy Examiners as fulfilling ____ unit(s) [hour(s)
] of the ethics and professional responsibility requirement
for license renewal purposes for physical therapists and physical
therapist assistants."
(C) Accredited providers may use the following statement
in publicity: "This activity [course] is provided
by the Texas Board of Physical Therapy Examiners Accredited Provider
#______ and meets continuing competence [education]
requirements for physical therapist and physical therapist assistant
licensure renewal in Texas."
(5) Interested parties may contact the TPTA to inquire
if a particular activity [program] is approved.
A list of approved activities [programs] is
available on the TPTA web site.
(6) Pursuant to the MOU, the TPTA shall provide quarterly
reports to the board of its activities. Additionally, the TPTA shall
report to the board the results of periodic quality assurance follow-up
or review of a representative sample of approved continuing
competence activities [education programs]. In the event of
sponsor noncompliance, results will be reported to the board in writing
for further investigation and direction.
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 28, 2009.
TRD-200903825
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.5, Waiver of Continuing Education Units (CEUs). The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.5.Waiver of Continuing Competence Units(CCUs) [Education Units (CEUs)].
CCUs [CEUs] required for renewal of a
license may be waived by the board because of hardship for health
and medical problems that prevent a licensee from obtaining the
CCUs [CEUs]. Waiver requests must be submitted prior
to license expiration. The license cannot be renewed until the waiver
has been approved by the board [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 28, 2009.
TRD-200903826
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.8, Inactive Status. The amendments would update terminology to reflect changes made regarding continuing competence during the 81st legislative session.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.8.Inactive Status.
(a) Inactive status indicates the voluntary termination of the right or privilege to practice physical therapy in Texas. The board may allow a licensee who is not actively engaged in the practice of physical therapy in Texas to inactivate the license instead of renewing it at time of renewal. A licensee may remain on inactive status for no more than six consecutive years.
(b) Requirements for initiation of inactive status. The components required to put a license on inactive status are:
(1) a signed renewal application form, documenting
completion of board-approved continuing
competence activities [education (CE)
] for the current renewal period, as described
in §341.2 of this title, concerning Continuing
Competence Requirements [Education];
(2) the inactive fee, and any late fees which may be due; and
(3) a passing score on the jurisprudence exam.
(c) Requirements for renewal of inactive status. An inactive licensee must renew the inactive status every two years. The components required to maintain the inactive status are:
(1) a signed renewal application form, documenting
completion of board-approved continuing
competence activities [education (CE)
] for the current renewal period, as described
in §341.2 of this title, concerning Continuing
Competence Requirements [Education];
(2) the inactive renewal fee, and any late fees which may be due; and
(3) a passing score on the jurisprudence exam.
(d) Requirements for reinstatement of active status. A licensee on inactive status may request a return to active status at any time. After the licensee has submitted a complete application for reinstatement, the board will send a renewal certificate for the remainder of the current renewal period to the licensee.
(1) The components required to return to active status are:
(A) a signed renewal application form, documenting
completion of board-approved continuing
competence activities [education (CE)
] for the current renewal period, as described
in §341.2 of this title, concerning Continuing
Competence Requirements [Education];
(B) the renewal fee, and any late fees which may be due; and
(C) a passing score on the jurisprudence exam.
(2) The board will allow the licensee to substitute one of the following actions for the continuing education requirements:
(A) re-take and pass the national licensure exam;
(B) attend a university review course pre-approved by the board; or
(C) complete an internship (equal to 150 hours of continuing education) pre-approved by the board.
(e) Licensees on inactive status are subject to the
audit of continuing education as described in §341.2 of this
title, concerning Continuing Competence Requirements [
Education Requirements].
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 28, 2009.
TRD-200903827
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.9, Retired Status. The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.9.Retired Status.
(a) Retired status means that a licensee is providing physical therapy services only in the domain of voluntary charity care.
(b) As used in the section:
(1) "voluntary charity care" means physical therapy services provided for no compensation as a volunteer of a charitable organization as defined in §84.003 of the Texas Civil Practice and Remedies Code. Charitable organizations include 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 promoting the common good and general welfare for the people in a community, including these types of organizations with a §501.(c)(3) or (4) exemption from federal income tax, some chambers of commerce, and volunteer centers certified by the Department of Public Safety.
(2) "compensation" means direct or indirect payment of anything of monetary value.
(c) To be eligible for retired status, a licensee must hold a current license on active or inactive status.
(d) Requirements for initiation of retired status. The components required to put a license on retired status are:
(1) a completed and notarized retired status application form;
(2) completion of board-approved continuing
competence activities [education (CE)
] for the current renewal period;
(3) the retired status fee and any late fees which may be due; and
(4) a passing score on the jurisprudence exam.
(e) Requirements for renewal of retired status. A licensee on retired status must renew the retired status every two years on his/her license renewal date. The components required to renew the retired status are:
(1) a completed retired status application form;
(2) completion of six hours of board-approved continuing
competence activities [education (CE)] by both PTs
and PTAs;
(3) the retired status renewal fee, and any late fees which may be due; and
(4) a passing score on the jurisprudence exam.
(f) Requirements for return to active practice. A licensee who has been on retired status for less than one year must submit the regular license renewal fee and the late fee as described in §341.1, Requirements for Renewal. A licensee who has been on retired status for more than one year must retake and pass the national licensure examination to return the license to active status. The components required to return the license to active status are:
(1) a completed and notarized application;
(2) a fee equal to the license application fee;
(3) a passing score on the retake of the national examination, and
(4) a passing score on the jurisprudence exam.
(g) A license may be maintained on retired status indefinitely.
(h) A licensee on retired status may use the designation "PT, retired" or "PTA, retired", as appropriate.
(i) Licensees on retired status are subject to the
audit of continuing competence activities [
education] as described in §341.2 of this title, concerning Continuing
Competence [Education] Requirements.
(j) Licensees providing voluntary charity care are subject to disciplinary action under the Physical Therapy Practice Act.
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 28, 2009.
TRD-200903828
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §341.20, Licensees Called to Active Military Service. The amendments would update language to reflect changes made to the Physical Therapy Practice Act regarding continuing competency during the 81st legislative session.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendments are in effect the public benefit will be consistency in terminology throughout the rules. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§341.20.Licensees Called to Active Military Service.
(a) Renewal. A licensee who is a member of the reserves and called to active military service must submit renewal fees within 90 days after active service has ended if their license expired within the months of active service. The regular renewal month will not change. The licensee must submit official documentation of active service and its inclusive dates.
(b) Continuing competence units (CCUs) [education
units (CEUs)].
(1) A licensee who is a member of the reserves and
called to active military service will have his/her
CCUs [CEUs
] prorated in proportion to the number of months of documented
active service.
(2) A licensee whose license expires during the period
of active service will be given a complete waiver of
CCUs [CEUs] for the past renewal period, and
CCUs [CEUs]
for months of documented active service in the current renewal cycle
will be prorated.
(3) All licensees must take two hours of board-approved
programs in ethics and professional responsibility as part of their
total continuing competence [CE
] requirement, which cannot be prorated.
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 28, 2009.
TRD-200903829
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
The Texas Board of Physical Therapy Examiners proposes amendments to §347.1, Definitions. The amendments would change the way the board defines a physical therapy facility, removing the requirement that a physical therapist providing services on an unpredictable and irregular basis in a setting or facility which he does not own or manage, and in which healthcare is not the primary service offered, register as a portable facility. It would allow a physical therapist providing services within those parameters to do so without registering the facility in which he is providing services.
John P. Maline, Executive Director, has determined that for the first five-year period the amendments are in effect there will be no additional costs to state or local governments as a result of enforcing or administering the amendment.
Mr. Maline has also determined that for each year of the first five-year period the amendment is in effect the public benefit will be greater availability of services in non-clinical settings. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendments. There are no anticipated costs to individuals who are required to comply with the amendments as proposed.
Comments on the proposed amendments may be submitted to Nina Hurter, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: nhurter@mail.capnet.state.tx.us. Comments must be received no later than 30 days from the date the proposed amendments are published in the Texas Register.
The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.
Title 3, Subtitle H, Chapter 453, Texas Occupations Code is affected by the amendments.
§347.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Physical therapy facility--A physical site, such
as a building, office, or portable facility, where the practice of
physical therapy takes place. A location or business is not defined
as a physical therapy facility if all three of the following conditions
apply: [An individual or company providing physical therapy
services at multiple locations is considered a portable facility if
all of the following conditions are met: The location or building
in which physical therapy services are provided is not in the care,
custody or control of the individual or company providing those services;
physical therapy services are not provided on a predictable or regular
basis at any one location; and healthcare delivery is not the primary
purpose, activity, or business of the site where the services are
provided. A physical therapy facility must be under the direction
of a physical therapist licensed by the board.]
(A) the location or building in which physical therapy services are provided is not in the care, custody or control of the individual or company providing those services;
(B) physical therapy services are not provided on a predictable or regular basis at any one location; and
(C) healthcare delivery is not the primary purpose, activity, or business of the site where the services are provided.
(2) Physical therapist in charge--A physical therapist who is designated on the application for registration as the one who has the authority and responsibility for the facility's compliance with the Act and rules pertaining to the practice of physical therapy in the facility.
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 28, 2009.
TRD-200903830
John P. Maline
Executive Director
Texas Board of Physical Therapy Examiners
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 305-6900
CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS
The Texas Real Estate Commission (TREC) proposes 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 proposed 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, which is being proposed for repeal.
Devon V. Bijansky, Assistant General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the proposed amendments. There is no anticipated economic cost to persons who are required to comply with the proposed amendments. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the proposed amendments.
Ms. Bijansky also has determined that, for each year of the first five years the amendments as proposed are in effect, the public benefit anticipated as a result of enforcing the amendments will be consistency between state law and the TREC-promulgated contract forms.
Comments on the proposal may be submitted to Devon V. Bijansky, Assistant General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendments are proposed 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 proposal is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed 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 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 28, 2009.
TRD-200903800
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3926
(Editor's note: The text of the following section proposed for repeal 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) proposes 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 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.
Devon V. Bijansky, Assistant General Counsel, has determined that for the first five-year period the proposed repeal is in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the proposed repeal. There is no anticipated economic cost to persons who are required to comply with the proposed repeal. There is no anticipated impact on small businesses, micro-businesses or local or state employment as a result of implementing the proposed repeal.
Ms. Bijansky also has determined that, for each year of the first five years the repeal as proposed is in effect, the public benefit anticipated as a result of enforcing the repeal will be consistency between state law and the TREC-promulgated contract forms.
Comments on the proposed repeal may be submitted to Devon V. Bijansky, Assistant General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The repeal is proposed 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 proposal is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed repeal.
§537.50.Standard Contract Form TREC No. 43-0.
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 28, 2009.
TRD-200903801
Devon V. Bijansky
Assistant General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 11, 2009
For further information, please call: (512) 465-3926