PART 11. TEXAS BOARD OF NURSING
CHAPTER 213. PRACTICE AND PROCEDURE
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §213.33, concerning Factors Considered for Imposition of Penalties/Sanctions with changes to subsections (k) and (l) of the proposed text published in the December 4, 2009, issue of the Texas Register (34 TexReg 8628).
REASONED JUSTIFICATION. The amendments are adopted under the Occupations Code §§301.452, 301.4521, 301.453, 301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461, 301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151 and are necessary to: (i) implement House Bill (HB) 3961, enacted by the 81st Legislature, Regular Session, effective June 19, 2009, which adds §301.4521 to the Occupations Code Chapter 301; and (ii) adopt the Disciplinary Matrix (Matrix), which is used in the resolution of eligibility and disciplinary matters before the Board, in rule.
The Board first proposed amendments to §213.33 in the September 11, 2009, issue of the Texas Register (34 TexReg 6255). Based upon comments received, the Board determined that it would reconsider the amendments to §213.33 in a separate rule-making action in lieu of adopting the amendments as proposed at that time. The Board withdrew the proposed amendments to §213.33 in the November 6, 2009, issue of the Texas Register (34 TexReg 7775). The Board re-proposed amendments to §213.33 in the December 4, 2009, issue of the Texas Register (34 TexReg 8628) to address physical and psychological evaluations under the Occupations Code §301.4521, to adopt the Matrix in rule, and to re-designate the subsections of §213.33 for consistency and cohesiveness. In response to written comments on the published proposal, the Board has changed some of the proposed language in the text of the rule as adopted. The changes, however, do not materially alter issues raised in the proposal, introduce new subject matter, or affect persons other than those previously on notice.
The Board has made changes to §213.33(k) as adopted in response to comments that the proposed amendments did not clearly delineate the differences between the scope of a required evaluation and a requested evaluation under §301.4521. Specifically, commenters expressed concern that the proposed amendments did not preclude the Board from utilizing a "forensic" evaluation, including a polygraph examination, as a component of a required evaluation under §301.4521. Commenters further stated that the testing of professional character and veracity through the use of a polygraph examination should be limited to evaluations that are requested under §301.4521. The Board has made changes to §213.33(k) as adopted to further clarify the scope of a required evaluation under §301.4521. Specifically, the Board has eliminated all references to "forensic component" and "forensic evaluation" in §213.33(k) as adopted to clarify that a required evaluation under §301.4521 will not include a forensic evaluation or the use of a forensic component as part of a required evaluation. Further, the provisions of §213.33(l) as adopted make clear that a requested evaluation under §301.4521 may include a forensic evaluation or the use of a forensic component as part of a requested evaluation. The Board has also made changes to §213.33(l) as adopted in response to comments that the proposed language in §213.33(l)(4) created ambiguity regarding the applicability of §301.4521 to evaluations required under §213.33(k). The Board has deleted the proposed language in §213.33(l)(4) from the adopted rule in order to eliminate any ambiguity that was created by the proposal. However, the Board re-iterates that the provisions of §301.4521 will apply to any evaluation required or requested under §213.33(k) or (l) as adopted.
In response to recommendations from the Eligibility and Disciplinary Advisory Committee (Committee), the Board has added the terms "neuropsychologist" and "neuropsychological" to §213.33(k) and (l) as adopted in order to appropriately reference this sub-specialty. Further, in response to recommendations from the Committee, the Board has changed §213.33(k) and (l) as adopted to include advanced practice registered nurses in the listing of health care providers that the Board may approve to conduct an evaluation. The Board emphasizes, however, that although an advanced practice registered nurse may be considered by the Board to conduct an evaluation, the Board will carefully review the credentials, experience, and expertise of the advanced practice registered nurse before approving the individual to conduct an evaluation under adopted §213.33(k) or (l).
The Occupations Code §301.4521
HB 3961 adds §301.4521 to Chapter 301, which authorizes the Board to: (i) require an individual to submit to a physical or psychological evaluation if the Board has probable cause to believe that the individual is unable to practice nursing safely due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol; and (ii)request an individual to submit to a physical or psychological evaluation if the Board believes that the individual is unable to practice nursing safely for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. If the Board requires an individual to submit to an evaluation due to physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 requires the Board to submit its request in writing. Further, new §301.4521 requires the Board to describe its reasons for requiring the evaluation and to inform an individual that refusal to submit to the evaluation will result in an administrative hearing at the State Office of Administrative Hearings (SOAH) to determine whether probable cause for the evaluation exists. Further, at the conclusion of the hearing, the Administrative Law Judge (ALJ) will enter an order either requiring the individual to submit to the evaluation or rescinding the Board's demand for the evaluation. If an individual refuses to submit to the evaluation after the ALJ enters an order requiring the evaluation, new §301.4521 authorizes the Board to: (i) refuse to issue or renew the individual's license; (ii) suspend the individual's license; or (iii) issue an order limiting the individual's license. If the Board requests an individual to submit to an evaluation for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, new §301.4521 also requires the Board to submit its request in writing. Under new §301.4521, the Board is required to state its reasons for the evaluation; specify the type of evaluation it is requesting; explain how it may use the evaluation; inform the individual that he or she may refuse to submit to the evaluation; and explain the procedures for submitting an evaluation in a hearing regarding the issuance or renewal of the individual's license. If an individual refuses to consent to the requested evaluation, new §301.4521 prohibits the individual from introducing an evaluation into evidence at a hearing conducted by SOAH, unless the individual meets certain, specified requirements. New §301.4521 also requires the Board to: (i) establish, by rule, the qualifications for a licensed practitioner to conduct an evaluation under §301.4521; and (ii) adopt guidelines for requiring or requesting an individual to submit to an evaluation under §301.4521.
The adopted amendments to §213.33(k) and (l) implement the requirements of HB 3961 by: (i) identifying the circumstances in which an evaluation may be required or requested by the Board under new §301.4521; (ii) specifying the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521; and (iii) prescribing the required components of an evaluation under new §301.4521. Although the adopted amendments implement the requirements of HB 3961, they do not substantially alter the Board's existing policies, procedures, and requirements regarding evaluations. Rather, the adopted amendments codify the Board's existing policies, procedures, and requirements regarding evaluations. Historically, the Board has requested physical and psychological evaluations in order to evaluate an individual's fitness to practice. Further, the Board has considered the conclusions and recommendations of evaluators when determining the appropriate remedy in disciplinary cases. The Board has typically recognized and approved evaluators based upon their education, experience, and expertise in conducting evaluations. Further, the Board has typically required each evaluator to utilize objective criteria during an evaluation to address the Board's particular areas of concern. The Board has requested physical, psychological, and forensic evaluations from individuals since 1998 and has consistently utilized evaluations in disciplinary cases since that time. Although the Board's policies, procedures, and requirements regarding evaluations have been refined over time, the essential substance of such policies, procedures, and requirements has not changed. These policies, procedures, and requirements are now being formally incorporated into the adopted amendments to §213.33, pursuant to the requirements of HB 3961.
The adopted amendments to §213.33(k) are necessary to prescribe the requirements that will apply to an evaluation required by the Board under new §301.4521(b). Adopted §213.33(k) specifies that the Board may require an individual to submit to an evaluation if the Board has probable cause to believe that an individual is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Further, adopted §213.33(k) specifies: (i) the credentials that a provider must possess in order to perform an evaluation under new §301.4521(b); and (ii) the requirements the evaluation must meet. Pursuant to adopted §213.33(k), a provider must be a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, neuropsychologist, advanced practice registered nurse, or psychiatrist in order to conduct an evaluation required by the Board under new §301.4521(b). The adopted amendments further require the provider to possess credentials that are appropriate for the specific evaluation required by the Board. Additionally, the evaluator must be familiar with the duties appropriate to the nursing profession and the evaluation must be conducted pursuant to professionally recognized standards and methods. Adopted §213.33(k) also requires the evaluator to utilize objective tests and instruments with valid and reliable validity scales designed to test an individual's fitness to practice. If applicable, adopted §213.33(k) also requires the evaluator to review an individual's prognosis and medication regime.
The adopted amendments to §213.33(l) are necessary to prescribe the requirements that will apply to an evaluation requested by the Board under new §301.4521(f). New §301.4521(f) authorizes the Board to request an evaluation for a reason other than physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol. Accordingly, the adopted amendments to §213.33(l) clarify that the Board may request an evaluation in circumstances where an individuals's prior criminal history, unprofessional conduct, or good professional character are at issue. The adopted amendments to §213.33(l) also prescribe the credentials that an evaluator must possess in order to conduct an evaluation under new §301.4521(f) and the criteria that the evaluation must meet.
Under the adopted amendments, a provider must be a Board-approved forensic psychologist, forensic psychiatrist, or advanced practice registered nurse who is familiar with the duties appropriate to the nursing profession. Further, the provider must utilize objective tests and instruments, as determined and requested by the Board, that are designed to test an individual's psychological or neuropsychological stability, fitness to practice, professional character, and veracity. Under the adopted amendments to §213.33(l), an evaluator must: (i) consider an individual's behavior or prior criminal history; and (ii) provide an opinion as to whether the individual is likely to engage in the behavior or criminal activity again and whether the individual poses any danger to the public.
The adopted amendments to §213.33(k) and (l) are necessary for several reasons. The Board is charged with protecting the health, safety, and welfare of the public from the unsafe, incompetent, unethical, or illegal conduct of licensees and individuals subject to Chapter 301. An individual's impairment creates a threat to the public's safety and welfare, regardless of whether the impairment is caused by a physical or mental condition, chemical dependency, or drug or alcohol abuse. In situations involving the impairment of an individual, the Board has determined that it has a responsibility to remove the individual from all nursing duties involving direct patient care until the individual is deemed safe to return to those duties. Further, individuals who have a substantial criminal history or who exhibit unprofessional conduct, such as misappropriation of property or falsification of documents, may also pose a serious risk to the public's safety. In these cases, the Board is particularly concerned that such conduct may be repeated in connection with the individual's practice of nursing, thereby placing vulnerable members of the public in danger and affecting the individual's ability to safely care for patients. The Board has determined that physical and psychological evaluations are useful tools in determining whether an individual is safe to practice nursing and has relied upon evaluations in the past for such purposes. However, an evaluation must be based upon reliable, verifiable, and objective information in order to be useful to the Board in making such determinations. As such, the adopted amendments to §213.33(k) and (l) are intended to ensure that an evaluation under new §301.4521 is conducted by an appropriately trained provider who specializes in the specific area relevant to the required or requested evaluation. Further, the adopted amendments to §213.33(k) and (l) require an evaluator to be familiar with the duties appropriate to the nursing profession. This adopted requirement is especially significant. In order for an evaluation to be useful to the Board, an evaluator must be able to form an opinion as to whether an individual can practice nursing safely. In order to reach such an opinion, an evaluator must be familiar with the duties that are relevant to the nursing profession. Patients under the care of a nurse are vulnerable by virtue of illness or injury and are dependent upon the nature of the nurse-patient relationship. Further, the nurse-patient relationship exists in settings other than a hospital, such as in home health, hospice care, or nursing home care. An evaluator must be familiar with the types of settings in which a nurse may work, the kinds of tasks that a nurse must be able to perform, and the skills and judgment that a nurse must utilize as part of his or her daily routine. Further, an evaluator must understand the complexities associated with providing direct patient care in any setting in order to be able to adequately assess an individual's ability to meet those responsibilities. The adopted amendments to §213.33(k) and (l) also require an evaluation to be conducted pursuant to professionally recognized standards and methods and to include objective testing.
These adopted requirements are necessary to assist the Board in determining whether an individual is likely to be able to comply with Chapter 301 and the Board's policies and rules in the future. This is a very important factor for the Board to consider, especially in cases that involve prior criminal or unprofessional conduct. Although the Board considers all factors and circumstances in each case, the Board is especially concerned with the likelihood that an individual's dangerous or unsafe behavior may be repeated in the future. To that end, the adopted requirements are designed to ensure that evaluators utilize objective and reliable instruments to determine if an individual: (i) understands the significance of the events that have transpired, (ii) has plans in place to prevent the reoccurrence of the events that have transpired; (iii) has made amends for past conduct; (iv) currently possesses the physical and mental stability to practice safely, and (v) currently possesses the professional character necessary to practice safely. If an evaluator determines that an individual may practice safely, these factors also play a large role in determining whether the individual should be subject to Board monitoring and supervision. Although the Board considers the totality of factors present in each disciplinary case, the information and data obtained during an evaluation, including an evaluator's conclusions and recommendations, are invaluable in assisting the Board in determining whether an individual is safe to practice nursing, and, if so, under what circumstances.
The Disciplinary Matrix
In 2007, the Sunset Advisory Commission (Commission) evaluated the functions of the Board and made several recommendations to the 80th Legislature. In particular, the Commission recommended that the Board adopt an enforcement matrix in rule. (see Sunset Advisory Commission Report, Recommendation 8.6, http://www.sunset.state.tx.us/80threports/final80th/79.pdf). Specifically, Recommendation 8.6 required the Board to establish, in rule, a matrix to use when determining disciplinary actions for nurses who violated state law or Board rules. The Commission noted that, "[w]hile adopting an enforcement matrix will help the Board make consistent, fair disciplinary decisions, the matrix would not be used as a one-size-fits-all approach, as the Board would maintain flexibility in determining the most appropriate sanction for each violation". The Commission also noted that the Board should take into account the licensee's compliance history, the seriousness of the violation, the threat to the public's health and safety, and other mitigating factors in developing the matrix. Further, the Commission noted that the adoption of an enforcement matrix in rule would provide the public with the opportunity to comment on the development of the matrix and would provide nurses with ready access to the Board's enforcement guidelines, which would allow them to better understand the potential consequences of violations.
HB 2426 was enacted during the 80th Legislative Session and amended Chapter 301 to include §301.4531, which relates to Schedule of Sanctions. Section 301.4531 requires the Board, by rule, to adopt a schedule of the disciplinary sanctions that the Board may impose under Chapter 301. Further, in adopting the schedule of sanctions, §301.4531 requires the Board to ensure that the severity of the sanction is appropriate to the type of violation or conduct that is the basis for the disciplinary action. The amendments to §301.4531 appear to be closely related to the recommendations of the Commission regarding the adoption of an enforcement matrix in rule. At its July 19-20, 2007, Board meeting, the Board proposed the adoption of amendments to 22 Texas Administrative Code §213.33. The amendments outlined a schedule of sanctions that could be imposed for violations of Chapter 301. The adopted amendments were published in the Texas Register on October 5, 2007, and became effective on October 10, 2007. Additionally, the Board considered and approved the development of a more comprehensive "matrix" as contemplated by the Commission. From approximately May, 2007, to April, 2008, the Eligibility and Disciplinary Task Force (Task Force) worked to develop a comprehensive disciplinary matrix which could be used to analyze violations of Chapter 301 in a fair and consistent manner, while maintaining the Board's flexibility to determine the most appropriate action in each case. Following the development of the Matrix, the Task Force recommended that the Board pilot its use. The Board approved the Matrix as a pilot at its April, 2008, Board meeting, and the Matrix was published in the Texas Register on May 9, 2008 (33 TexReg 3827) for public comment.
Board Staff began piloting the use of the Matrix in eligibility and disciplinary matters in May, 2008. During the pilot period, Board Staff utilized the Matrix to analyze violations of Chapter 301 and Board rules and to determine the most appropriate sanction for those violations. The Matrix was also used to: (i) develop initial recommendations/proposed orders; (ii) evaluate cases during informal conferences; (iii) refer/provide information to members of the public (attorneys, employers, licensees) so they could better understand the potential consequences of particular violations/conduct; and (iv) make recommendations during administrative hearings at SOAH. Approximately 3,600 disciplinary actions were taken against licensees during the pilot period.
At its October 22-23, 2009, Board meeting, the Board considered and approved amendments to the Matrix. The amendments addressed various issues that Board Staff became aware of during the pilot period and incorporated changes that were made to Chapter 301 during the 81st Legislative Session. The amendments also included changes that were recommended to the Board by the Committee. The Committee convened on September 17, 2009, and considered several proposed amendments to the Matrix. Following a lengthy discussion, the Committee voted to unanimously approve the proposed amendments to the Matrix and recommend their adoption to the Board. Further, the Committee proposed three additional amendments to the Matrix and voted to recommend their adoption to the Board. The amendments that were approved and adopted by the Board at its October, 2009, meeting: (i) clarify the circumstances under which aggravating and/or mitigating circumstances may be considered by the Board; (ii) clarify the Board's authority under the Occupations Code §301.4521; (iii) clarify the applicability of the Matrix to eligibility matters; (iv) revise the amounts of fines for consistency with 22 Texas Administrative Code §213.32 (relating to Corrective Action Proceedings and Schedule of Administrative Fines); (v) clarify the applicability of a corrective action under the Occupations Code §§301.651 - 301.657; (vi) provide consistency between the sanctions for a violation of the Occupations Code §301.452(b)(3) and (b)(4); (vii) clarify the available sanctions for a violation of the Occupations Code §301.452(b)(1), (9), and (10); (viii) incorporate references to the Occupations Code §301.4551 throughout the Matrix; (ix) remove the word "or" from the first sanction level for a first and second tier offense for a violation of the Occupations Code §301.452(b)(1); (x) remove the phrase "nurse is not currently practicing as a nurse" from the list of mitigating circumstances for a violation of Occupations Code §301.452(b)(9); and (xi) remove the phrase "harm to patient was not a result of care" from the list of mitigating circumstances for a violation of the Occupations Code §301.452(b)(10). In addition to approving the amendments and adopting the Matrix, the Board also approved the proposal of the Matrix in rule. At its January 21-22, 2010, meeting, the Board approved the adoption of the Matrix in rule.
Adopted §213.33(a) requires the Matrix to be utilized in all disciplinary and eligibility matters before the Board. This adopted requirement is designed to ensure consistency, efficiency, and predictability in Board decisions regarding eligibility and disciplinary matters. Adopted §213.33(b) sets forth the adopted Matrix. The adopted Matrix contains the amendments that were approved by the Board at its October, 2009, meeting, and which have been previously specified in this adoption order. The other portions of the Matrix remain unchanged from the version of the Matrix that was utilized during the pilot period.
The Matrix, as set forth in adopted §213.33(b), is organized by offense tiers and sanction levels. The offenses listed in the Matrix mirror the offenses specified in the Occupations Code §301.452(b)(1) - (13). Section 301.452(b)(1) - (13) prescribes the specific violations of Chapter 301 for which a person is subject to disciplinary action or denial of licensure by the Board. Each offense in the Matrix is divided into tiers. The first offense tier typically includes less serious violations that involve a low risk of harm to the public. The second, third, and fourth offense tiers typically include more serious violations that involve a greater risk of harm to the public. For each offense tier specified in the Matrix, there are two corresponding sanction levels. The first sanction level includes Board actions that are less severe in nature, while the second sanction level includes Board actions that are more severe in nature. Each offense tier in the Matrix includes a description of events that might fall within that offense tier. Further, each sanction level contains a description of the disciplinary actions that could be imposed for the corresponding offense tier. These clarifications are necessary to provide notice to licensees and members of the public of the potential consequences of violations of Chapter 301. The Matrix also includes a non-exhaustive list of aggravating and mitigating factors that may be considered by the Board when determining the appropriate offense tier and sanction level for a specific offense. These clarifications are designed to assist licensees and other members of the public in understanding the circumstances that could increase or decrease the severity of a particular offense. Finally, the Matrix reiterates the differences between a corrective action and a disciplinary action. The Matrix does not address violations for which a non-disciplinary corrective action may be imposed by the Board under the Occupations Code Subchapter N and 22 Texas Administrative Code §213.32. Rather, the Matrix addresses only those violations for which a disciplinary action under the Occupations Code Subchapter J may be imposed by the Board. This clarification is necessary to further define the scope of the Matrix.
Remaining amendments
The Occupations Code Chapters 53 and 301 require the Board to consider certain factors when determining the appropriate action in a disciplinary matter. The Board has determined that these factors should be considered in conjunction with the Matrix. As such, the adopted amendments to §213.33(c) specify at least 17 factors that must be considered in determining the appropriate offense tier and sanction level of the Matrix for a particular offense. The adopted amendments to §213.33(c) are necessary to ensure that the unique factors in each disciplinary matter before the Board are fully considered before a final determination is made regarding the imposition of a disciplinary action. This enhanced review should promote fair decisions in all disciplinary matters before the Board and should result in better protection of the public, as the presence of aggravating factors should result in more severe disciplinary actions, while the presence of mitigating factors should result in less severe disciplinary actions.
The adopted amendments to §213.22(e) are necessary to specify the probationary stipulations that may accompany a specific disciplinary action. Before a disciplinary action may be imposed in any particular matter, the factors specified in adopted §213.33 (c) must be evaluated and the appropriate offense tier and sanction level of the Matrix must be determined. Once an offense tier and sanction level are determined, a corresponding disciplinary action may be imposed. Adopted §213.33(e) lists the probationary stipulations that may accompany the imposed disciplinary action. The adopted amendments to §213.33(e) are necessary to provide notice to licensees and other members of the public of the potential consequences of violations of Chapter 301, including which probationary stipulations are likely to accompany a specific disciplinary action.
Further, the adopted amendments to §213.22(e) clarify the Board's existing policy regarding random drug testing through urinalysis. If an individual is placed under Board monitoring for chemical dependency or the misuse or abuse of alcohol or drugs, the Board typically requires the individual to submit to random drug screening for a specified period of time as part of the probationary stipulations of the disciplinary action. The Board requires an individual to be tested for approximately fourteen prohibited substances, including alcohol. The Board has required its random drug screening to be verified through urinalysis since at least 1989. Over the years, the Board has found urinalysis to be a reliable method for screening for prohibited substances, including alcohol. Further, the Board contracts with a third party vendor to conduct its drug screening, and the Board's vendor utilizes urinalysis to verify the results of the screens. The adopted amendments to §213.33(e) formally codify the Board's existing policy regarding random drug testing by clarifying that all random drug testing must be verified through urinalysis.
Finally, the adopted amendments to §213.33(g) are necessary to clarify that the Board's adopted polices regarding fraud, theft, and deception; lying and falsification; sexual misconduct; criminal conduct; and substance abuse, misuse, substance dependency, or substance use disorder also apply in eligibility and disciplinary matters. Further, the adopted amendments to §213.33(h) are necessary to clarify that, to the extent that a conflict exists between the Matrix and the Board's adopted eligibility and disciplinary policies specified in adopted §213.33(g), the Matrix controls.
HOW THE SECTIONS WILL FUNCTION. The adopted title of §213.33 reads: "Factors Considered for Imposition of Penalties/Sanctions".
Adopted §213.33(a) states that the Board and SOAH shall utilize the Matrix set forth in §213.33(b) in all disciplinary and eligibility matters. Adopted §213.33(b) sets forth the Matrix.
Adopted §213.33(c) provides that the Board and SOAH shall consider certain factors in conjunction with the Matrix when determining the appropriate penalty/sanction in disciplinary and eligibility matters. The factors shall be analyzed in determining the tier and sanction level of the Matrix for a particular violation or multiple violations of the Nursing Practice Act (NPA) and Board rules. The factors include: (i) evidence of actual or potential harm to patients, clients, or the public; (ii) evidence of a lack of truthfulness or trustworthiness; (iii) evidence of misrepresentation(s) of knowledge, education, experience, credentials, or skills which would lead a member of the public, an employer, a member of the health-care team, or a patient to rely on the fact(s) represented where such reliance could be unsafe; (iv) evidence of practice history; (v) evidence of present fitness to practice; (vi) whether the person has been subject to previous disciplinary action by the Board or any other health care licensing agency in Texas or another jurisdiction and, if so, the history of compliance with those actions; (vii) the length of time the person has practiced; (viii) the actual damages, physical, economic, or otherwise, resulting from the violation; (ix) the deterrent effect of the penalty imposed; (x) attempts by the licenses to correct or stop the violation; (xi) any mitigating or aggravating circumstances, including those specified in the Matrix; (xii) the extent to which system dynamics in the practice setting contributed to the problem; (xiii) whether the person is being disciplined for multiple violations of the NPA or its derivative rules and orders; (xiv) the seriousness of the violation; (xv) the threat to public safety; (xvi) evidence of good professional character as set forth and required by §213.27 (relating to Good Professional Character); and (xvii) any other matter that justice may require.
Adopted §213.33(d) provides that each specific act or instance of conduct may be treated as a separate violation.
Adopted §213.33(e) states that, the Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions, with or without probationary stipulations: (i) denial of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit; (ii) approval of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit, with reasonable probationary stipulations; (iii) probation of an order denying a license application, license renewal, license reinstatement, or temporary permit, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in §213.33(k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (iv) issuance of a warning, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in §213.33(k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of at least one year under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (v) issuance of a reprimand, with reasonable probationary stipulations including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in subsections (k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of at least two years under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (vi) limitation or restriction of the person's license, including limits on specific nursing activities or periodic Board review; (vii) suspension of the person's license, which may be enforced and active for a specific period and/or probated with reasonable probationary stipulations, including submitting to care, supervision, counseling, or treatment by a health provider designated by the Board; submitting to an evaluation as outlined in subsections (k) and (l) or pursuant to the Occupations Code §301.4521; participating in a program of education or counseling prescribed by the Board; limiting specific nursing activities and/or periodic Board review; practicing for a specified period of not less than two years under the direction of a registered nurse or vocational nurse designated by the Board; abstaining from the unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or performing public service which the Board considers appropriate; (viii) remit payment of the administrative penalty, fine, or assessment of hearing costs; (ix) acceptance of a voluntary surrender of a nurse's license(s); (x) revocation of the person's license; (xi) require participation in remedial education course or courses prescribed by the Board which are designed to address those competency deficiencies identified by the Board; (xii) assessment of a fine as set forth in §213.32 (relating to Corrective Action Proceedings and Schedule of Administrative Fines); (xiii) assessment of costs as authorized by the Occupations Code §301.461 and the Government Code §2001.177; or (xiv) require successful completion of a Board approved peer assistance program.
Adopted §213.33(f) provides that every disciplinary order issued by the Board shall require the person subject to the order to participate in a program of education or counseling prescribed by the Board, which, at a minimum, will include a review course in nursing jurisprudence and ethics.
Adopted §213.33(g) states that the following disciplinary and eligibility sanction policies and guidelines shall be used by the Board and SOAH when determining the appropriate penalty/sanction in disciplinary and eligibility matters: (i) Disciplinary Sanctions for Fraud, Theft, and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (ii) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's web-site at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (iii) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; (iv) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html; and (v) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
Section 213.33(h) states that, to the extent that a conflict exists between the Matrix and a disciplinary and eligibility sanction policy described in adopted §213.33(g), the Matrix controls. Adopted §213.33(i) provides that, unless otherwise specified, fines shall be payable in full by cashier's check or money order not later than the 45th day following the entry of an Order. Adopted §213.33(j) states that the payment of a fine shall be in addition to the full payment of all applicable fees and satisfaction of all other applicable requirements of the NPA and the Board's rules.
Adopted §213.33(k) provides that if the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, the Board may require an evaluation that meets the following standards: (i) the evaluation must be conducted by a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, neuropsychologist, advanced practice registered nurse, or psychiatrist, with credentials appropriate for the specific evaluation, as determined by the Board. In all cases, the evaluator must possess credentials, expertise, and experience appropriate for conducting the evaluation, as determined by the Board. The evaluator must be familiar with the duties appropriate to the nursing profession; (ii) the evaluation must be designed to determine whether the suspected impairment prevents the person from practicing nursing with reasonable skill and safety to patients. The evaluation must be conducted pursuant to professionally recognized standards and methods. The evaluation must include the utilization of objective tests and instruments with valid and reliable validity scales designed to test the person's fitness to practice. The evaluation may include testing of the person's psychological or neuropsychological stability only if the person is suspected of mental impairment, chemical dependency, or drug or alcohol abuse. If applicable, the evaluation must include information regarding the person's prognosis and medication regime; and (iii) the person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by the Board staff and a release that permits the evaluator to release the evaluation to the Board. The person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.
Adopted §213.33(l) 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, forensic psychiatrist, or advanced practice registered nurse who: (i) evaluates the behavior in question or the prior criminal history of the person; (ii) seeks to predict the likelihood that the person subject to evaluation will engage in the behavior in question or criminal activity again, which may result in the person committing a second or subsequent reportable violation or receiving a second or subsequent reportable adjudication or conviction; and the continuing danger, if any, that the person poses to the community; (iii) is familiar with the duties appropriate to the nursing profession; (iv) conducts the evaluation pursuant to professionally recognized standards and methods; and (v) utilizes objective tests and instruments, as determined and requested by the Board, that are designed to test the psychological or neuropsychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation. Further, the person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by Board staff and a release that permits the evaluator to release the evaluation to the Board. Finally, the person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.
SUMMARY OF COMMENTS AND AGENCY RESPONSE.
Comment: A commenter representing the Texas Nurses Association (TNA) states that §301.4521 was added to clarify the Board's authority to utilize physical and psychological evaluations as part of the licensure and disciplinary process. The commenter states that, in addition to recognizing the Board's current authority to request persons to submit to voluntary evaluations, §301.4521 authorizes the Board to require a physical and psychological evaluation under certain specified circumstances. The commenter states that a crucial difference between a required and a requested or voluntary evaluation was that the required evaluation would be more limited in scope. The commenter states that required evaluations would not include what the Board has historically referred to as "forensic" evaluations, including polygraph examinations. The commenter states that this type of "forensic" evaluation would continue to be an evaluation that the Board could only request, but not require.
The commenter states that TNA does not believe proposed §213.33(k) and (l) adequately reflect the clear distinction that §301.4521 makes between the scope of evaluations the Board can require and those it can only request. More specifically, the commenter states that proposed §213.33(k) does not clearly preclude the Board from using what the Board has historically characterized as "forensic" evaluations, including polygraph examinations, as a component of required evaluations. Further, the commenter states that TNA has particular concerns about the use of the wording "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" in proposed §213.33(k). The commenter states that this language suggests professional character and veracity (for example, requiring a polygraph) are testing the Board can require a person to submit to. Further, the commenter states that TNA believes that testing of professional character and veracity by requiring a polygraph are not appropriate components of a required evaluation. The commenter states that the testing of these two items should be limited to requested or voluntary evaluations. The commenter further states that TNA believes that it is not appropriate to require testing of psychological stability when evaluating fitness to practice solely because of a physical impairment.
The commenter states that TNA wishes to make clear that it does not object to adequate evaluations. For example, the commenter states that TNA believes that the Board should require that any testing utilized be verified as valid and reliable, based upon acceptable standards for determining validity and reliability. The commenter states that TNA also believes that the Board should require an evaluation under §213.33(k) be sufficiently comprehensive to adequately test the extent of the suspected impairment (for example, requiring an evaluation for chemical dependency to include more than a client interview). The commenter provided proposed language to address these concerns and requests that the proposed language be adopted by the Board.
Agency Response: The Board agrees and has made the suggested changes to §213.33(k) as adopted. Further, the Board has eliminated all references to "forensic components" and "forensic evaluations" in §213.33(k) as adopted.
Comment: The commenter representing TNA states that proposed §213.33(l)(4) states that the provisions of §301.4521 apply to evaluations requested under subsection (l). The commenter states that there is no similar language in proposed §213.33(k) stating that the provisions of §301.4521 apply to evaluations required under subsection (k). The commenter states that omitting this language from §213.33(k) could be construed as suggesting that the provisions of §301.4521 do not apply to evaluations under subsection (k). The commenter states that this could create ambiguity as to whether §301.4521 provisions not set out in §213.33(k) apply. The commenter states that these include provisions relating to costs, confidentiality of evaluations, and expunging of evaluations under certain circumstances. The commenter requests that a statement be added to §213.33(k) as adopted to reflect that the provisions of §301.4521 apply to an evaluation required under §213.33(k).
Agency Response: The Board agrees and has deleted the language in proposed §213.33(l)(4). Proposed §213.33(k) generally prescribes the requirements and conditions related to an evaluation required by the Board under §301.4521(b). In contrast, proposed §213.33(l) generally prescribes the requirements and conditions related to an evaluation requested by the Board under §301.4521(f). Section 301.4521(b) specifically prescribes the reasons for which the Board is authorized to require an individual to submit to an evaluation. This statutory language is duplicated in §213.33(k). However, §301.4521(f) does not prescribe the reasons for which the Board is authorized to request an individual to submit to an evaluation. Because §301.4521(f) does not prescribe the specific reasons for which the Board is authorized to request an individual to submit to an evaluation under that section, proposed §213.33(l) was intended to provide examples of circumstances in which the Board would request an individual to submit to an evaluation. It is not necessary to include similar clarification in §213.33(k). Although the language in proposed §213.33(l)(4) was intended to clarify the provisions of §213.33(l), the Board is aware that such language may cause unintended ambiguity. As such, the Board has deleted the language in proposed §213.33(l)(4) from the adopted rule in order to remove any ambiguity. Further, the Board emphasizes that the provisions of §301.4521 will apply to any evaluation required or voluntary when requested pursuant to §213.33(k) or (l).
Comment: The commenter representing TNA states that §301.4521 provides significant protections for the nurse being evaluated that are not identified in proposed §213.33(k) or (l). The commenter states that these include protections relating to confidentiality and expunging of evaluations. The commenter states that, while these protections would apply by virtue of the fact that they are set out in §301.4521, TNA believes it is preferable that the statutory protections be reiterated in the rule as adopted. The commenter requests that language be added to §213.33(k) and (l) as adopted to reflect that the provisions of §301.4521 will apply to evaluations under §213.33(k) and (l) as adopted, including §301.4521(j), relating to confidentiality of evaluations, and §301.4521(k), relating to expunging of evaluation results.
Agency Response: The Board declines to make the change. The Board feels that adding language to the adopted rule that references only §301.4521(j) and (k) may introduce unintended ambiguity into the adopted rule. The Board agrees with the commenter that the protections specified in §301.4521 will apply to all evaluations required or requested under §213.33(k) and (l) as adopted.
Comment: The commenter representing TNA states that the use of the wording "or pursuant to the Occupations Code §301.4521" in proposed §213.33(e)(2)(B), (e)(3)(B), and (e)(4)(B) suggests that evaluations outlined in proposed §213.33(k) and (l) differ from evaluations described in §301.4521. The commenter requests that this wording be deleted or reworded. Further, the commenter states that TNA is not sure of the purpose of proposed §213.33(e)(2)(B), (e)(3)(B), and (e)(4)(B). The commenter states that, while TNA understands the imposition of treatment as a condition of probation, it is not sure it understands how submitting to an evaluation would work as a condition of probation. Further, the commenter states that it would seem that the evaluation would normally occur before probation is imposed and be used to determine the appropriate probationary stipulations.
Agency Response: The Board declines to make the change. While the Board may only require an individual to submit to an evaluation for one of the specific reasons prescribed in §301.4521(b), the Board is not similarly limited in its ability to request an individual to submit to an evaluation under proposed §301.4521(f). Proposed §213.33(e)(2)(B), (e)(3)(B), and (e)(4)(B) clarify that the Board may require, as a probationary stipulation, that an individual submit to an evaluation for any of the reasons prescribed in §213.33(k) and (l), as well as for any other reason permitted by §301.4521. This clarification is consistent with the provisions of §301.4521. Further, an evaluation may be necessary at various stages of a disciplinary action, depending upon the specific circumstances of each disciplinary matter. Proposed §213.33(e)(2)(B), (e)(3)(B), and (e)(4)(B) enumerate probationary stipulations that may be imposed by the Board in a disciplinary action. However, these stipulations are not required to be imposed in each disciplinary action taken by the Board. In some disciplinary actions, it will be appropriate to include subsequent or continuing evaluation as part of the probationary stipulations. As such, the Board believes that if it adopts the recommended change that this may limit its ability to fashion appropriate probationary monitoring in its disciplinary matters.
Comment: The commenter representing TNA states that proposed §213.33(c)(1) relates to factors the Board considers in determining the appropriate penalty/sanction to impose in a disciplinary and eligibility matter. The commenter states that, while TNA understands that actual harm cannot be ignored, TNA does not believe that the presence or absence of harm should be the focal point. Rather, the commenter states that TNA believes the focus should be on the extent of risk of harm the nurse exposed the patient to and whether the nurse knowingly or recklessly exposed the patient to that risk. The commenter states that whether actual harm resulted or not does not necessarily make the nurse an unsafe or safe practitioner. Further, the commenter points out that proposed §213.33(c)(1) appears to be somewhat redundant of proposed §213.33(c)(8).
Agency Response: The Board declines to make the change. Proposed §213.33(c) enumerates various factors that must be considered by the Board when determining the appropriate penalty/sanction in eligibility and disciplinary matters. While any evidence of actual harm to patients, clients, and the public is considered by the Board in a disciplinary matter, it may not necessarily be the focal point of the Board's investigation or ultimate determination. Rather, each of the factors enumerated in proposed §213.33(c), which would include the extent of risk of harm and whether a nurse knowingly or recklessly exposed a patient to a risk, should be considered by the Board before determining the appropriate penalty/sanction is an eligibility or disciplinary matter. Further, while evidence of harm may sometimes be related to evidence of damages, the two are not necessarily synonymous.
The Eligibility and Disciplinary Advisory Committee
The Committee convened on December 7, 2009 and considered the proposed amendments to 22 Tex. Admin. Code §213.33, Pertaining to Factors Considered for Imposition of Penalties/Sanctions and/or Fines. Following a thorough discussion of the proposal, the Committee voted to recommend its adoption to the Board, with a few minor changes. The Committee first recommended that the terms "neuropsychological" and "neuropsychologist" be added to the proposal for additional clarity. The Board agrees and has made this suggested change. The Committee also recommended that the Board add advanced practice registered nurses to the types of health care providers that the Board may approve to conduct evaluations of a nurse's competency to safely practice. The Committee further commented that the Board should review an advanced practice registered nurse's credentials, experience, and expertise, however, before approving a specific advanced practice registered nurse to conduct an evaluation. The Board agrees and has made this suggested change. Finally, the Committee recommended adding the phrase "and/or" to proposed §213.33(k) to clarify that an evaluation must be designed to test the psychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation. Based upon the Committee's recommendations and the comments received from the representative of TNA, the Board has made changes to §213.33(k) as adopted to address this concern.
NAMES OF THOSE COMMENTING FOR AND AGAINST THE PROPOSAL. For: None. Against: None. For, with changes: The Texas Nurses Association. Neither for nor against, with changes: None.
STATUTORY AUTHORITY.
The amendments are adopted under the Occupations Code §§301.452, 301.4521, 301.453, 301.4531, 301.454(d), 301.455(a) and (b), 301.4551, 301.461, 301.462, 301.467, 301.468(a), 301.501, 301.502, and 301.151.
Section 301.452(a) defines intemperate use to include practicing nursing or being on duty or on call while under the influence of alcohol or drugs. Section 301.452(b) provides that a person is subject to denial of a license or to disciplinary action under Subchapter J for: (i) a violation of Chapter 301, a rule or regulation not inconsistent with Chapter 301, or an order issued under Chapter 301; (ii) fraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing; (iii) a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony or for a misdemeanor involving moral turpitude; (iv) conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude; (v) use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered; (vi) impersonating or acting as a proxy for another person in the licensing examination required under §301.253 or §301.255; (vii) directly or indirectly aiding or abetting an unlicensed person in connection with the unauthorized practice of nursing; (viii) revocation, suspension, or denial of, or any other action relating to, the person's license or privilege to practice nursing in another jurisdiction; (ix) intemperate use of alcohol or drugs that the Board determines endangers or could endanger a patient; (x) unprofessional or dishonorable conduct that, in the Board's opinion, is likely to deceive, defraud, or injure a patient or the public; (xi) adjudication of mental incompetency; (xii) lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or (xiii) failure to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the Board's opinion, exposes a patient or other person unnecessarily to risk of harm. Section 301.452(c) provides that the Board may refuse to admit a person to a licensing examination for a ground described under §301.452(b).
Section 301.4521(a) defines the term applicant as a petitioner for a declaratory order of eligibility for a license or an applicant for an initial license or renewal of a license and the term evaluation as a physical or psychological evaluation conducted to determine a person's fitness to practice nursing. Section 301.4521(b) provides that the Board may require a nurse or applicant to submit to an evaluation only if the Board has probable cause to believe that the nurse or applicant is unable to practice nursing with reasonable skill and safety to patients because of: (i) physical impairment; (ii) mental impairment; or (iii) chemical dependency or abuse of drugs or alcohol. Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b) must be in writing and state: (i) the reasons probable cause exists to require the evaluation; and (ii) that refusal by the nurse or applicant to submit to the evaluation will result in an administrative hearing to be held to make a final determination of whether probable cause for the evaluation exists. Section 301.4521(d) states that, if the nurse or applicant refuses to submit to the evaluation, the Board shall schedule a hearing on the issue of probable cause to be conducted by SOAH. The nurse or applicant must be notified of the hearing by personal service or certified mail. The hearing is limited to the issue of whether the Board had probable cause to require an evaluation. The nurse or applicant may present testimony and other evidence at the hearing to show why the nurse or applicant should not be required to submit to the evaluation. The Board has the burden of proving that probable cause exists. At the conclusion of the hearing, the hearing officer shall enter an order requiring the nurse or applicant to submit to the evaluation or an order rescinding the Board's demand for an evaluation. The order may not be vacated or modified under the Government Code 2001.058. Section 301.4521(e) states that, if a nurse or applicant refuses to submit to an evaluation after an order requiring the evaluation is entered under §301.4521(d), the Board may: (i) refuse to issue or renew a license; (ii) suspend a license; or (iii) issue an order limiting the license. Section 301.452(f) provides that the Board may request a nurse or applicant to consent to an evaluation by a practitioner approved by the Board for a reason other than a reason listed in §301.4521(b). A request for an evaluation under §301.4521(f) must be in writing and state: (i) the reasons for the request; (ii) the type of evaluation requested; (iii) how the Board may use the evaluation; (iv) that the nurse or applicant may refuse to submit to an evaluation; and (v) the procedures for submitting an evaluation as evidence in any hearing regarding the issuance or renewal of the nurse's or applicant's license. Section 301.4521(g) states that, if a nurse or applicant refuses to consent to an evaluation under §301.4521(f), the nurse or applicant may not introduce an evaluation into evidence at a hearing to determine the nurse's or applicant's right to be issued or retain a nursing license unless the nurse or applicant: (i) not later than the 30th day before the date of the hearing, notifies the Board that an evaluation will be introduced into evidence at the hearing; (ii) provides the Board the results of that evaluation; (iii) informs the Board of any other evaluations by any other practitioners; and (iv) consents to an evaluation by a practitioner that meets Board standards established under §301.4521(h). Section 301.4521(h) provides that the Board shall establish by rule the qualifications for a licensed practitioner to conduct an evaluation under §301.4521. The Board shall maintain a list of qualified practitioners. The Board may solicit qualified practitioners located throughout the state to be on the list. Section 301.4521(i) states that a nurse or applicant shall pay the costs of an evaluation conducted under §301.4521. Section 301.4521(j) provides that the results of an evaluation under §301.4521 are: (i) confidential and not subject to disclosure under the Government Code Chapter 552; (ii) not subject to disclosure by discovery, subpoena, or other means of legal compulsion for release to anyone, except that the results may be: (A) introduced as evidence in a proceeding before the Board or a hearing conducted by SOAH under Chapter 301; or (B) included in the findings of fact and conclusions of law in a final Board order. Section 301.4521(k) provides that, if the Board determines there is insufficient evidence to bring action against a person based on the results of any evaluation under §301.4521, the evaluation must be expunged from the Board's records. Section 301.4521(l) requires the Board to adopt guidelines for requiring or requesting a nurse or applicant to submit to an evaluation under §301.4521. Section 301.4521(m) states that the authority granted to the Board under §301.4521 is in addition to the Board's authority to make licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that a person has committed an act listed in §301.452(b), the Board shall enter an order imposing one or more of the following: (i) denial of the person's application for a license, license renewal, or temporary permit; (ii) issuance of a written warning; (iii) administration of a public reprimand; (iv) limitation or restriction of the person's license, including limiting to or excluding from the person's practice one or more specified activities of nursing or stipulating periodic Board review; (v) suspension of the person's license for a period not to exceed five years; (vi) revocation of the person's license; or (vii) assessment of a fine. Section 301.453(b) provides that, in addition to or instead of an action under §301.453(a), the Board, by order, may require the person to: (i) submit to care, counseling, or treatment by a health provider designated by the Board as a condition for the issuance or renewal of a license; (ii) participate in a program of education or counseling prescribed by the Board; (iii) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board; or (iv) perform public service the Board considers appropriate. Section 301.453(c) provides that the Board may probate any penalty imposed on a nurse and may accept the voluntary surrender of a license. The Board may not reinstate a surrendered license unless it determines that the person is competent to resume practice. Section 301.453(d) states that if the Board suspends, revokes, or accepts surrender of a license, the Board may impose conditions for reinstatement that the person must satisfy before the Board may issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a schedule of the disciplinary sanctions that the Board may impose under Chapter 301. In adopting the schedule of sanctions, the Board shall ensure that the severity of the sanction imposed is appropriate to the type of violation or conduct that is the basis for disciplinary action. Section 301.4531(b) states, in determining the appropriate disciplinary action, including the amount of any administrative penalty to assess, the Board shall consider: (i) whether the person is being disciplined for multiple violations of either Chapter 301 or a rule or order adopted under Chapter 301 or has previously been the subject of disciplinary action by the Board and has previously complied with Board rules and Chapter 301; (ii) the seriousness of the violation; (iii) the threat to public safety; and (iv) any mitigating factors. Section 301.4531(c) provides that, in the case of a person described by §301.4531(b)(1)(A), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a single violation; and in the case of a person described by §301.4531(b)(1)(B), the Board shall consider taking a more severe disciplinary action, including revocation of the person's license, than the disciplinary action that would be taken for a person who has not previously been the subject of disciplinary action by the Board.
Section 301.454(d) provides that SOAH shall use the schedule of sanctions adopted by the Board for any sanction imposed as the result of a hearing conducted by SOAH. Section 301.455(a) provides that the license of a nurse shall be temporarily suspended or restricted on a determination by a majority of the Board or a three-member committee of Board members designated by the Board that, from the evidence or information presented, the continued practice of the nurse would constitute a continuing and imminent threat to the public welfare. Section 301.455(b) provides that a license may be temporarily suspended or restricted under §301.455 without notice or hearing on the complaint if: (i) institution of proceedings for a hearing before SOAH is initiated simultaneously with the temporary suspension or determination to restrict; and (ii) a hearing is held as soon as possible under Chapter 301 and the Government Code Chapter 2001.
Section 301.4551 provides that the Board shall temporarily suspend the license of a nurse as provided by §301.455 if the nurse is under a Board order prohibiting the use of alcohol or a drug or requiring the nurse to participate in a peer assistance program, and the nurse tests positive for alcohol or a prohibited drug; refuses to comply with a Board order to submit to a drug or alcohol test; or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the Board for noncompliance.
Section 301.461 states that the Board may assess a person who is found to have violated Chapter 301 the administrative costs of conducting a hearing to determine the violation.
Section 301.462 provides that the Board may revoke a nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the Board and executes a sworn statement that the nurse does not desire to be licensed.
Section 301.467(a) provides that on application, the Board may reinstate a license to practice nursing to a person whose license has been revoked, suspended, or surrendered. Section 301.467(b) provides that an application to reinstate a revoked license: (i) may not be made before the first anniversary of the date of the revocation; and (ii) must be made in the manner and form the Board requires. Section 301.467(c) provides that, if the Board denies an application for reinstatement, it may set a reasonable waiting period before the applicant may reapply for reinstatement.
Section 301.468(a) provides that the Board may determine that an order denying a license application or suspending a license be probated. A person subject to a probation order shall conform to each condition the Board sets as the terms of probation, including a condition: (i) limiting the practice of the person to, or excluding, one or more specified activities of professional nursing or vocational nursing; or (ii) requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the Board.
Section 301.501 provides that the Board may impose an administrative penalty on a person licensed or regulated under Chapter 301 who violates Chapter 301 or a rule or order adopted under Chapter 301.
Section 301.502(a) states that the amount of the administrative penalty may not exceed $5,000 for each violation. Further, each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. Section 301.502(b) states that the amount of the penalty shall be based on: (i) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (ii) the economic harm to property or the environment caused by the violation; (iii) the history of previous violations; (iv) the amount necessary to deter a future violation; (v) efforts made to correct the violation; and (vi) any other matter that justice may require.
Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
§213.33.Factors Considered for Imposition of Penalties/Sanctions.
(a) The Board and the State Office of Administrative Hearings (SOAH) shall utilize the Disciplinary Matrix set forth in subsection (b) of this section in all disciplinary and eligibility matters.
(b) The Disciplinary Matrix is as follows:
Figure: 22 TAC §213.33(b) (.pdf)
(c) The Board and SOAH shall consider the following factors in conjunction with the Disciplinary Matrix when determining the appropriate penalty/sanction in disciplinary and eligibility matters. The following factors shall be analyzed in determining the tier and sanction level of the Disciplinary Matrix for a particular violation or multiple violations of the Nursing Practice Act (NPA) and Board rules:
(1) evidence of actual or potential harm to patients, clients, or the public;
(2) evidence of a lack of truthfulness or trustworthiness;
(3) evidence of misrepresentation(s) of knowledge, education, experience, credentials, or skills which would lead a member of the public, an employer, a member of the health-care team, or a patient to rely on the fact(s) misrepresented where such reliance could be unsafe;
(4) evidence of practice history;
(5) evidence of present fitness to practice;
(6) whether the person has been subject to previous disciplinary action by the Board or any other health care licensing agency in Texas or another jurisdiction and, if so, the history of compliance with those actions;
(7) the length of time the person has practiced;
(8) the actual damages, physical, economic, or otherwise, resulting from the violation;
(9) the deterrent effect of the penalty imposed;
(10) attempts by the licensee to correct or stop the violation;
(11) any mitigating or aggravating circumstances, including those specified in the Disciplinary Matrix;
(12) the extent to which system dynamics in the practice setting contributed to the problem;
(13) whether the person is being disciplined for multiple violations of the NPA or its derivative rules and orders;
(14) the seriousness of the violation;
(15) the threat to public safety;
(16) evidence of good professional character as set forth and required by §213.27 of this chapter (relating to Good Professional Character); and
(17) any other matter that justice may require.
(d) Each specific act or instance of conduct may be treated as a separate violation.
(e) The Board may, upon the finding of a violation, enter an order imposing one or more of the following disciplinary actions, with or without probationary stipulations:
(1) Denial of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit;
(2) Approval of the person's application for a license; license renewal; reinstatement of a revoked, suspended, or surrendered license; or temporary permit, with reasonable probationary stipulations as a condition of issuance, renewal, or reinstatement of the license or temporary permit. Additionally, the Board may determine, in accordance with §301.468 of the NPA, that an order denying a license application, license renewal, license reinstatement, or temporary permit be probated. Reasonable probationary stipulations may include, but are not limited to:
(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board as a condition for the issuance, renewal, or reinstatement of the license or temporary permit;
(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
(C) participate in a program of education or counseling prescribed by the Board;
(D) limit specific nursing activities and/or periodic Board review;
(E) practice for a specified period under the direction of a registered nurse or vocational nurse designated by the Board;
(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(G) perform public service which the Board considers appropriate;
(3) Issuance of a Warning. The issuance of a Warning shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:
(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
(C) participate in a program of education or counseling prescribed by the Board;
(D) limit specific nursing activities and/or periodic Board review;
(E) practice for a specified period of at least one year under the direction of a registered nurse or vocational nurse designated by the Board;
(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(G) perform public service which the Board considers appropriate;
(4) Issuance of a Reprimand. The issuance of a Reprimand shall include reasonable probationary stipulations which may include, but are not limited to, one or more of the following:
(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
(C) participate in a program of education or counseling prescribed by the Board;
(D) limit specific nursing activities and/or periodic Board review;
(E) practice for a specified period of at least two years under the direction of a registered nurse or vocational nurse designated by the Board;
(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(G) perform public service which the Board considers appropriate;
(5) Limitation or restriction of the person's license, including limits on specific nursing activities or periodic Board review;
(6) Suspension of the person's license. The Board may determine that the order of suspension be enforced and active for a specific period and/or probated with reasonable probationary stipulations as a condition for lifting or staying the order of suspension. Reasonable probationary stipulations may include, but are not limited to, one or more of the following:
(A) submit to care, supervision, counseling, or treatment by a health provider designated by the Board;
(B) submit to an evaluation as outlined in subsections (k) and (l) of this section or pursuant to the Occupations Code §301.4521;
(C) participate in a program of education or counseling prescribed by the Board;
(D) limit specific nursing activities and/or periodic Board review;
(E) practice for a specified period of not less than two years under the direction of a registered nurse or vocational nurse designated by the Board;
(F) abstain from unauthorized use of drugs and alcohol to be verified by random drug testing conducted through urinalysis; or
(G) perform public service which the Board considers appropriate;
(7) Remit payment of the administrative penalty, fine, or assessment of hearing costs;
(8) Acceptance of a Voluntary Surrender of a nurse's license(s);
(9) Revocation of the person's license;
(10) Require participation in remedial education course or courses prescribed by the Board which are designed to address those competency deficiencies identified by the Board;
(11) Assessment of a fine as set forth in §213.32 of this chapter (relating to Corrective Action Proceedings and Schedule of Administrative Fines);
(12) Assessment of costs as authorized by the Occupations Code §301.461 and the Government Code §2001.177; or
(13) Require successful completion of a Board approved peer assistance program.
(f) Every disciplinary order issued by the Board shall require the person subject to the order to participate in a program of education or counseling prescribed by the Board, which at a minimum, will include a review course in nursing jurisprudence and ethics.
(g) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Board and SOAH when determining the appropriate penalty/sanction in disciplinary and eligibility matters:
(1) Disciplinary Sanctions for Fraud, Theft, and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
(h) To the extent that a conflict exists between the Disciplinary Matrix and a disciplinary and eligibility sanction policy described in subsection (g) of this section, the Disciplinary Matrix controls.
(i) Unless otherwise specified, fines shall be payable in full by cashier's check or money order not later than the 45th day following the entry of an Order.
(j) The payment of a fine shall be in addition to the full payment of all applicable fees and satisfaction of all other applicable requirements of the NPA and the Board's rules.
(k) If the Board has probable cause to believe that a person is unable to practice nursing with reasonable skill and safety because of physical impairment, mental impairment, chemical dependency, or abuse of drugs or alcohol, the Board may require an evaluation that meets the following standards:
(1) The evaluation must be conducted by a Board-approved addictionologist, addictionist, medical doctor, neurologist, doctor of osteopathy, psychologist, neuropsychologist, advanced practice registered nurse, or psychiatrist, with credentials appropriate for the specific evaluation, as determined by the Board. In all cases, the evaluator must possess credentials, expertise, and experience appropriate for conducting the evaluation, as determined by the Board. The evaluator must be familiar with the duties appropriate to the nursing profession.
(2) The evaluation must be designed to determine whether the suspected impairment prevents the person from practicing nursing with reasonable skill and safety to patients. The evaluation must be conducted pursuant to professionally recognized standards and methods. The evaluation must include the utilization of objective tests and instruments with valid and reliable validity scales designed to test the person's fitness to practice. The evaluation may include testing of the person's psychological or neuropsychological stability only if the person is suspected of mental impairment, chemical dependency, or drug or alcohol abuse. If applicable, the evaluation must include information regarding the person's prognosis and medication regime.
(3) The person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by the Board staff and a release that permits the evaluator to release the evaluation to the Board. The person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.
(l) When determining evidence of present fitness to practice because of known or reported unprofessional conduct, lack of good professional character, or prior criminal history:
(1) The Board may request an evaluation conducted by a Board-approved forensic psychologist, forensic psychiatrist, or advanced practice registered nurse who:
(A) evaluates the behavior in question or the prior criminal history of the person;
(B) seeks to predict:
(i) the likelihood that the person subject to evaluation will engage in the behavior in question or criminal activity again, which may result in the person committing a second or subsequent reportable violation or receiving a second or subsequent reportable adjudication or conviction; and
(ii) the continuing danger, if any, that the person poses to the community;
(C) is familiar with the duties appropriate to the nursing profession;
(D) conducts the evaluation pursuant to professionally recognized standards and methods; and
(E) utilizes objective tests and instruments, as determined and requested by the Board, that are designed to test the psychological or neuropsychological stability, fitness to practice, professional character, and/or veracity of the person subject to evaluation.
(2) The person subject to evaluation shall sign a release allowing the evaluator to review the file compiled by Board staff and a release that permits the evaluator to release the evaluation to the Board.
(3) The person subject to evaluation should be provided a copy of the evaluation upon completion by the evaluator; if not, the Board will provide the person a copy.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 27, 2010.
TRD-201000390
Jena A. Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: February 16, 2010
Proposal publication date: December 4, 2009
For further information, please call: (512) 305-6822