PART 11. TEXAS BOARD OF NURSING
CHAPTER 211. GENERAL PROVISIONS
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §211.6 (relating to Committees of the Board) without changes to the proposed text published in the May 21, 2010, issue of the Texas Register (35 TexReg 3936).
REASONED JUSTIFICATION. The adopted amendments are necessary to implement Senate Bill (SB) 1415, enacted by the 81st Legislature, Regular Session, effective September 1, 2009, which adds new §301.1607 to the Occupations Code Chapter 301. This new section authorizes the deferral of final disciplinary actions against individuals as an alternative method of resolving certain violations of the Nursing Practice Act and Board rules. Specifically, SB 1415 directs the Board to determine the feasibility of conducting a pilot program to evaluate the efficacy and effect of deferring a final disciplinary action against an individual for minor violations of the Nursing Practice Act and Board rules. Further, if the Board determines that such a pilot program is feasible, SB 1415 requires the Board to develop and implement the pilot program no later than February 1, 2011. SB 1415 also establishes several parameters for the pilot program. Additionally, SB 1415 requires the Board to appoint an advisory committee to assist the Board in overseeing the pilot program and its evaluation. The advisory committee must include representatives of public advocacy organizations.
The Board reviewed the requirements of SB 1415 at its October, 2009, and January, 2010, meetings. At that time, the Board identified several factors that were relevant to its determination of the feasibility of a pilot program under SB 1415. First, the Board reviewed the results of a nationwide survey of other state boards of nursing. The survey was conducted to determine if any other state nursing board had implemented a program similar to the pilot program contemplated by SB 1415. The Board also considered the expungement programs of other state boards of nursing for comparison. Second, the Board considered the mandatory reporting requirements of the Nurse Licensure Compact (Compact), authorized under the Occupations Code Chapter 304, and the rules regarding membership of the Compact, as set forth in Chapter 220 of this title (relating to Nurse Licensure Compact), in conjunction with the confidentiality requirements of SB 1415. Third, the Board considered the mandatory reporting requirements of the national Healthcare Integrity and Protection Data Bank (HIPDB), in conjunction with the confidentiality provisions of SB 1415. Finally, the Board considered the recommendations of the Eligibility and Disciplinary Advisory Committee, who convened on September 17, 2009, and December 7, 2009, to consider the provisions of SB 1415 and to discuss the feasibility of a deferred disciplinary action pilot program. After carefully considering these factors, the Board determined that the pilot program was feasible. The Board approved the feasibility of the pilot program at its January, 2010, meeting. Further, the Board approved the adoption of new rules to implement the pilot program at its April, 2010, meeting. The Board is adopting new §213.34 of this title (relating to Deferred Disciplinary Action Pilot Program) to establish the parameters and limitations of the pilot program, as determined necessary by the Board. New §213.34 is being adopted simultaneously by the Board in this edition of the Texas Register.
The Board is adopting new §211.6(f)(1)(E) in order to implement the oversight requirements of SB 1415. SB 1415 requires the Board to appoint an advisory committee to assist the Board in overseeing the pilot program and its evaluation. Pursuant to the requirements of SB 1415, adopted new §211.6(f)(1)(E) creates the Deferred Disciplinary Action Pilot Program Advisory Committee (Committee). This new advisory committee is being created to assist the Board in overseeing and evaluating the pilot program under §213.34 of this title. The new advisory committee under adopted new §211.6(f)(1)(E) will be abolished when the pilot program under SB 1415 comes to an end, but in no event later than January 1, 2014. This adopted new requirement is consistent with the provisions of SB 1415, which provide that the pilot program shall conclude no later than January 1, 2014. The adopted amendments also prescribe the members of the new advisory committee. Specifically, adopted new §211.6(f)(1)(E) provides that the new advisory committee will be comprised of representatives from the following stakeholder groups: (i) Texas Association of Vocational Nurse Educators (TAVNE); (ii) Licensed Vocational Nurses Association of Texas (LVNAT); (iii) Texas League of Vocational Nurses (TLVN); (iv) Texas Organization of Associate Degree Nursing (TOADN); (v) Texas Organization of Baccalaureate and Graduate Nurse Educators (TOBGNE); (vi) Texas Nurses Association (TNA); (vii) Texas Organization of Nurse Executives (TONE); and (viii) Coalition for Nurses in Advanced Practice. Additionally, the new advisory committee will be comprised of members of public advocacy organizations and other members as approved by the Board. The adopted membership of the new advisory committee generally mirrors the membership of the Board's existing Eligibility and Disciplinary Advisory Committee. The Eligibility and Disciplinary Advisory Committee was originally formed to develop recommendations for the Board concerning matters of nursing eligibility and discipline. Over time, the Eligibility and Disciplinary Advisory Committee has served to educate stakeholders as to the unique value of the Board in the protection of the public health and welfare through its discussions regarding nursing eligibility and discipline. The pilot program under SB 1415 is a new concept in nursing discipline. To the Board's knowledge, no other state board of nursing has implemented such a program. As such, the obstacles associated with implementing such a program have yet to be encountered and the success of such a program has yet to be measured. Because the pilot program will involve similar issues to those that are reviewed and considered regularly by the Eligibility and Disciplinary Advisory Committee, the Board has determined that the members of the Eligibility and Disciplinary Advisory Committee are in a unique position to provide valuable insight into the pilot program. Further, the members of the Eligibility and Disciplinary Advisory Committee are familiar with the requirements of SB 1415 and the pilot program, as the Eligibility and Disciplinary Advisory Committee considered the feasibility of the pilot program at its September 17, 2009, and December 7, 2009, meetings and made recommendations to the Board regarding its implementation. As such, the Board has determined that the membership of both advisory committees should overlap, thereby ensuring a continuing discussion and exchange of ideas and concepts involving deferred nursing discipline. The adopted new advisory committee will also include members of public advocacy organizations, which is required by SB 1415. These members will bring a new perspective to nursing discipline and will add value to the discussions and recommendations of the new advisory committee. Finally, the Board may appoint members to the new advisory committee as needed. Because advisory committee members serve in a voluntary role, situations commonly arise in which members are unable to continue their service on a committee. In such situations, the Board must be able to appoint additional members so that the work of a committee can continue. Additionally, as the work of advisory committee becomes more specialized and technical, the Board finds it helpful, at times, to appoint additional members with specialized knowledge relevant to the work of the committee. Maintaining the flexibility to appoint additional committee members provides the Board the opportunity to grow the expertise of the advisory committee, which should result in more informed committee recommendations and more effective regulation.
HOW THE SECTIONS WILL FUNCTION. Adopted new §211.6(f)(1)(E) creates the Deferred Disciplinary Action Pilot Program Advisory Committee to assist the Board in overseeing and evaluating the deferred disciplinary action pilot program under §213.34. Further, adopted new §211.6(f)(1)(E) provides that the Committee shall be abolished when the deferred disciplinary action pilot program under §213.34 comes to an end, but in no event later than January 1, 2014. Finally, adopted new §211.6(f)(1)(E) states that the Committee will be comprised of representatives from the following: (i) Texas Association of Vocational Nurse Educators (TAVNE); (ii) Licensed Vocational Nurses Association of Texas (LVNAT); (iii) Texas League of Vocational Nurses (TLVN); (iv) Texas Organization of Associate Degree Nursing (TOADN); (v) Texas Organization of Baccalaureate and Graduate Nurse Educators (TOBGNE); (vi) Texas Nurses Association (TNA); (vii) Texas Organization of Nurse Executives (TONE); (viii) Coalition for Nurses in Advanced Practice; and (ix) other members approved by the Board, including members of public advocacy organizations.
SUMMARY OF COMMENTS AND AGENCY RESPONSE. The Board did not receive any comments on the proposal.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §301.1607 and §301.151.
Section 301.1607(a) defines "deferred disciplinary action" as a final disciplinary action against a person licensed or regulated under the Occupations Code Chapter 301 that is deferred by the Board as provided by §301.1607.
Section 301.1607(b) requires the Board, not later than February 1, 2010, to determine the feasibility of conducting a pilot program designed to evaluate the efficacy and effect on the public's protection of Board deferral of disciplinary action against a person licensed or regulated under Chapter 301 in cases in which the Board proposes to impose a sanction other than a reprimand or a denial, suspension, or revocation of a license. Further, if the Board determines the pilot program is feasible, §301.1607(b) requires the Board to develop and implement the pilot program not later than February 1, 2011. Additionally, the pilot program must conclude not later than January 1, 2014.
Section 301.1607(c) states that the pilot program may not include cases in which the Board proposes to issue a reprimand or to deny, suspend, or revoke a license.
Section 301.1607(d) states that, during the time the pilot program is implemented and for any action or complaint for which the Board proposes to impose a sanction other than a reprimand or a denial, suspension, or revocation of a license, the Board may: (i) defer final disciplinary action the Board has proposed against a person licensed or regulated under Chapter 301 if the person conforms to conditions imposed by the Board, including any condition the Board could impose as a condition of probation under §301.468; and (ii) if the person successfully meets the imposed conditions, dismiss the complaint.
Section 301.1607(e) states that, except as otherwise provided by §301.1607(e), a deferred disciplinary action by the Board under the pilot program is not confidential and is subject to disclosure in accordance with the Government Code Chapter 552. If the person successfully meets the conditions imposed by the Board in deferring final disciplinary action and the Board dismisses the action or complaint, the deferred disciplinary action of the Board is confidential to the same extent as a complaint filed under §301.466.
Section 301.1607(f) provides that the Board may treat a deferred disciplinary action taken against a nurse under §301.1607 as a prior disciplinary action against the nurse when considering the imposition of a sanction for a subsequent violation of Chapter 301 or a rule or order adopted under Chapter 301.
Section 301.1607(g) states that the Board may contract with a third party to evaluate the pilot program established under §301.1607.
Section 301.1607(h) states that the Board shall appoint an advisory committee to assist the Board in overseeing the pilot program and its evaluation. Further, the committee must include representatives of public advocacy organizations.
Finally, §301.1607(i) states that §301.1607 expires September 1, 2014.
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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 22, 2010.
TRD-201003572
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: July 12, 2010
Proposal publication date: May 21, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §213.30 (relating to Declaratory Order of Eligibility for Licensure) without changes to the proposed text published in the May 21, 2010, issue of the Texas Register (35 TexReg 3939).
REASONED JUSTIFICATION. The amendments are adopted under the Occupations Code §§53.101 - 53.105, 301.257, and 301.151 and are necessary to: (i) implement House Bill (HB) 963, enacted by the 81st Legislature, Regular Session, effective June 19, 2009, which adds new Subchapter D to the Occupations Code Chapter 53; and (ii) enhance consistency among Board rules related to eligibility determinations.
Background
HB 963 enacts a significant change to the Occupations Code Chapter 53 that affects occupational license eligibility. HB 963 adds new Subchapter D, §§53.101 - 53.105, to Chapter 53. This new subchapter authorizes an individual to request a "criminal history evaluation letter" from a licensing authority if the individual is enrolled, or plans to enroll, in an educational program that prepares the individual for initial licensure, or is planning to take an examination for initial licensure, and has reason to believe he or she is ineligible for licensure due to a conviction or a deferred adjudication for a felony or misdemeanor offense. Pursuant to HB 963, an individual's request must state the basis for the potential ineligibility. HB 963 also prescribes certain requirements that a licensing authority must meet once it receives a request for a criminal history evaluation letter from an individual. First, if a licensing authority determines that a ground for ineligibility does not exist, the authority must notify the individual in writing of the authority's determination on each ground of potential ineligibility. Second, if a licensing authority determines that an individual is ineligible for a license, the licensing authority must issue a letter setting out each basis for potential ineligibility and the authority's determination as to the individual's eligibility. Third, a licensing authority must issue an eligibility determination no later than 90 days after the date the authority first receives the individual's request. These new provisions were modeled after the Occupations Code §301.257, which has been part of the Nursing Practice Act (the Occupations Code Chapter 301) since 1999 (added by HB 3155, 76th Regular Texas Legislature, effective September 1, 1999). Unlike the Nursing Practice Act, however, Chapter 53 applies to all occupational licensing agencies.
Although similar in nature, a few substantive differences exist between new Subchapter D, added by HB 963, and existing §301.257. First, §301.257 contemplates the issuance of a final eligibility order, while new Subchapter D references a "criminal history evaluation letter". Second, an individual may request an eligibility determination from the Board under §301.257 for any reason, including an individual's mental health status, prior criminal history, or chemical dependency. However, an individual may only request an eligibility determination from a licensing authority under new Subchapter D for an individual's prior criminal history. Third, if the Board proposes to find that an individual is ineligible for licensure under §301.257, the individual is entitled to a formal hearing at the State Office of Administrative Hearings. New Subchapter D provides no such right for an individual seeking an eligibility determination pursuant to its provisions. Finally, §301.257 does not require the Board to issue an eligibility determination within a specified period of time. However, new Subchapter D requires a licensing authority to issue an eligibility determination within 90 days after the receipt of an individual's request.
The Board is subject to the requirements of both §301.257 and new Subchapter D. The Board considered the requirements of HB 963 at its April, 2010, meeting. At that time, the Board compared the provisions of new Subchapter D to the provisions of §301.257. The Board also reviewed its internal procedures for investigating and resolving requests for eligibility determinations under §301.257. The Board determined that the provisions of §301.257 were generally more stringent than those of new Subchapter D. As a result, the Board determined that its existing procedures and requirements for investigating and resolving requests for eligibility determinations under §301.257 would meet the provisions of new Subchapter D, with one possible exception. New Subchapter D imposes a 90 day deadline in which a licensing authority must render an eligibility determination. Section 301.257 contains no comparable provision. As a result, the Board determined that it would have to implement new procedures to ensure compliance with this provision of new Subchapter D.
The Board estimates that it should be able to issue an eligibility determination within 4 - 6 weeks after receiving an individual's request and supporting documentation. Currently, it takes the Board substantially longer to issue final eligibility determinations. This is primarily because the Board must wait for individuals to submit additional documentation to the Board in order for the Board to complete its investigation of the individual's eligibility issue. For example, the Board requires an individual seeking an eligibility determination related to the individual's prior criminal history to submit supporting documents from the courts to the Board, such as indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation. Without these documents, the Board cannot make an informed decision regarding the individual's eligibility for licensure. If an individual does not timely submit these documents to the Board, the Board must postpone its investigation and eligibility determination until it receives the required documentation from the individual. This sometimes causes additional delay in the issuance of a final eligibility determination. As a result, the Board is adopting amended §213.30(d) to clarify that the Board's investigation of an individual's eligibility will not begin until the individual has provided all the necessary information and documentation to the Board. Once the Board receives the required information from the individual, the Board will promptly begin its investigation of the individual's eligibility for licensure. This adopted amendment is important for several reasons.
First, the adopted amendment ensures that the Board will be able to consistently meet the 90-day time requirement of new Subchapter D. Second, the adopted amendment ensures that eligibility determinations will only be made following a thorough investigation of an individual's eligibility. Providing the Board time to collect all of the necessary information regarding an individual's potential ineligibility ensures that each of the Board's decisions are informed and based upon objective, verifiable facts. Careful, deliberative decision making enables the Board to ensure that each individual seeking an eligibility determination is safe to practice nursing upon licensure, which is vital in protecting the interests of the public safety and welfare.
The Board is adopting amended §213.30(l) to make clear that the provisions of §213.30 implement the statutory requirements of both §301.257 and new Subchapter D.
Consistency Among Board Rules
The Board is adopting amendments to §213.30(a) and (k) in order to promote internal consistency among Board rules regarding eligibility determinations. Specifically, the adopted amendments to §213.30(a) and (k) are necessary for consistency with §217.2(b) (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4(d) (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate From Nursing Education Programs Outside of United States' Jurisdiction), and §217.5(e) (relating to Temporary License and Endorsement). These rules provide that all individuals who require eligibility determinations from the Board will be subject to the provisions of §213.30, regardless of whether the individual submitted an application to the Board under §§217.2(b), 217.4(d), or 217.5(e) or a petition for an eligibility determination under §213.30. These rules were originally adopted by the Board in order to ensure a fair and balanced process for all individuals requiring eligibility determinations from the Board. Since their enactment, these rules have ensured that all eligibility issues are reviewed by the Board through a single, unified process and that all similarly situated individuals are treated equally by the Board. The adopted amendments to §213.30(a) are necessary to reinforce the provisions of §§217.2(b), 217.4(d), and 217.5(e) by defining a "petitioner" under §213.30 to include those individuals who file an application for licensure under §§217.2(b), 217.4(d), and 217.5(e), but require an eligibility determination from the Board. The adopted amendments to §213.30(k) also serve a similar purpose. Adopted amended §213.30(k) re-iterates that an applicant for licensure under §§217.2(b), 217.4(d), and 217.5(e) who should have had an eligibility issue determined under §301.257 will be treated as a "petitioner" under §213.30 and will be required to comply with the requirements of §213.30 for an eligibility determination from the Board. This provision closely mirrors the provisions of §§217.2(b), 217.4(d), and 217.5(e). The Board has centrally located the specific procedures and requirements applicable to eligibility determinations in §213.30. As such, every individual who requires an eligibility determination from the Board will be required to meet the requirements of §213.30 and will be treated equally under that section. The adopted amendments to §213.30(a) and (k) serve to bolster the clarity of the Board's rules in this regard. Further, certain references within §213.30 to the term "applicant" have been replaced with references to the term "petitioner" in an effort to provide better consistency and cohesiveness within the section.
Remaining Amendments
The remaining adopted amendments to §213.30(b), (c), (e), (f), (g), (h), (i) and (j) are necessary to re-designate the existing subsections of §213.30 and to increase the overall organization and readability of the section. These adopted amendments do not substantively alter the existing provisions of the section, nor do they impose any new or additional requirements or restrictions upon individuals required to comply with the section. Adopted amended §213.30(b), (c), (e), (f), (g), (h), (i) and (j) set forth the requirements and procedures that an individual must meet prior to receiving an eligibility determination from the Board, such as requiring the submission of certain documentation. The adopted amendments also address an individual's options after receiving a final eligibility determination from the Board. Each of the provisions in adopted amended §213.30(b), (c), (e), (f), (g), (h), (i) and (j), however, already exist within the current text of §213.30. The Board is not seeking to alter or eliminate any of these existing requirements or procedures. Further, the mere rearrangement of these provisions within the section will not alter the Board's historical interpretation or application of these provisions or affect the Board's interpretation or application of these requirements in the future.
HOW THE SECTIONS WILL FUNCTION. Adopted amended §213.30(a) defines "petitioner" under §213.30 as an individual who: (1) is enrolled or planning to enroll in an educational nursing program that prepares individuals for initial licensure as a registered or vocational nurse; (2) seeks licensure by endorsement pursuant to §217.5; or (3) seeks licensure by examination pursuant to §217.2 or §217.4.
Adopted amended §213.30(b) provides that an individual who has reason to believe that he or she may be ineligible for initial licensure or licensure by endorsement may petition the Board for a declaratory order as to his or her eligibility.
Adopted §213.30(c) states that a petitioner must submit a petition on forms provided by the Board, which includes: (i) a statement by the petitioner indicating the reason(s) and basis of potential ineligibility; (ii) if the potential ineligibility is due to criminal conduct and/or conviction, any court documents including, but not limited to indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, if applicable; (iii) if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 (relating to Factors Considered for Imposition of Penalties/Sanctions) and evidence of treatment; (iv) if the potential ineligibility is due to chemical dependency, including alcohol, evidence of an evaluation that meets the criteria of §213.33 and treatment, after care, and support group attendance; and (v) the required fee, which is not refundable.
Adopted amended §213.30(d) states that, once the Board has received all necessary information, including the information required by §213.30(c), an investigation of the petition and the petitioner's eligibility shall be conducted.
Adopted amended §213.30(e) states that the petitioner or the Board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.
Adopted amended §213.30(f) provides that, if an individual seeking licensure by endorsement pursuant to §217.5 has been licensed to practice professional or vocational nursing in any jurisdiction and has been disciplined in that jurisdiction or allowed to surrender in lieu of discipline in that jurisdiction, the following provisions shall govern the eligibility of the petitioner with regard to §213.27 (relating to Good Professional Character): (i) a certified copy of the order or judgment of discipline from the jurisdiction is prima facie evidence of the matters contained in such order or judgment, and a final adjudication in the jurisdiction that the individual has committed professional misconduct is conclusive of the professional misconduct alleged in such order or judgment; and (ii) an individual who is disciplined for professional misconduct in the course of nursing in any jurisdiction or who resigned in lieu of disciplinary action is deemed to not have present good professional character under §213.27, and is therefore ineligible to seek licensure by endorsement under §217.5 during the period of discipline imposed by such jurisdiction, and in the case of revocation or surrender in lieu of disciplinary action, until the individual has filed a petition for reinstatement in the disciplining jurisdiction and obtained a final determination on that petition.
Adopted amended §213.30(g) states that, if a petitioner's potential ineligibility is due to criminal conduct and/or conviction, including deferred adjudication, the following provisions shall govern the eligibility of the petitioner with regard to §213.28 (relating to Licensure of Persons with Criminal Convictions): (i) the record of conviction, guilty plea, or order of deferred adjudication is conclusive evidence of guilt; and (ii) upon proof that a felony conviction or felony order of probation, with or without adjudication of guilt, has been set aside or reversed, the petitioner shall be entitled to a new hearing before the Board for the purpose of determining whether, absent the record of conclusive evidence of guilt, the petitioner possesses present good professional character and fitness.
Adopted amended §213.30(h) states that, if the Executive Director proposes to find the petitioner ineligible for licensure, the petitioner may obtain a hearing before the State Office of Administrative Hearings (SOAH). Further, the Executive Director shall have discretion to set a hearing and give notice of the hearing to the petitioner. Additionally, the hearing shall be conducted in accordance with §213.22 (relating to Formal Proceedings) and the rules of SOAH. When in conflict, SOAH's rules of procedure will prevail. Further, the decision of the Board shall be rendered in accordance with §213.23 (relating to Decision of the Board).
Adopted amended §213.30(i) states that a final Board order is issued after an appeal results in a Proposal for Decision from SOAH. Further, the Board's final order must set out each basis for potential ineligibility and the Board's determination as to eligibility. Additionally, in the absence of new evidence not disclosed by the petitioner or not reasonably available to the Board at the time the order is issued, the Board's ruling determines the petitioner's eligibility with respect to the grounds for potential ineligibility as set out in the order. An individual whose petition is denied by final order of the Board may not file another petition or seek licensure by endorsement or examination until after the expiration of three years from the date of the Board's order denying the petition. Further, if the petitioner does not appeal or request a formal hearing at SOAH after a letter proposal to deny eligibility made by the Eligibility and Disciplinary Committee of the Board or the Executive Director, the petitioner may re-petition or seek licensure by endorsement or examination after the expiration of one year from the date of the proposal to deny eligibility, in accordance with this section and the Occupations Code §301.257.
Adopted amended §213.30(j) provides that the Disciplinary Matrix and factors set forth in §213.33(b) and (c) and the following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director and SOAH when recommending a declaratory order of eligibility, and the Board in determining the appropriate declaratory order in 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 website 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.
Adopted amended §213.30(k) states that, if an individual seeking licensure by endorsement under §217.5 or licensure by examination under §217.2 or §217.4 should have had an eligibility issue settled pursuant to the Occupations Code §301.257, the filed application will be treated and processed as a petition for declaratory order under this section, and the individual will be treated as a petitioner under this section and will be required to pay the non-refundable fee required by this section.
Finally, adopted amended §213.30(l) states that §213.30 implements the requirements of the Occupations Code Chapter 53 Subchapter D and the Occupations Code §301.257.
SUMMARY OF COMMENTS AND AGENCY RESPONSE. The Board did not receive any comments on the proposal.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §§53.101 - 53.105, 301.257, and 301.151. Section 53.101(1) defines "license" as a license, certificate, registration, permit, or other authorization that is issued by a licensing authority and a person must obtain to practice or engage in a particular business, occupation, or profession. Section 53.101(2) defines "licensing authority" as a department, commission, board, office, or other agency of the state that issues a license.
Section 53.102(a) states that a person may request a licensing authority to issue a criminal history evaluation letter regarding the person's eligibility for a license issued by that authority if the person is enrolled, or planning to enroll, in an educational program that prepares a person for an initial license or is planning to take an examination for an initial license and has reason to believe that the person is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense. Section 53.102(b) states that the request must state the basis for the person's potential ineligibility.
Section 53.103 provides that a licensing authority has the same powers to investigate a request submitted under the Occupations Code Chapter 53, Subchapter D, and the requestor's eligibility that the authority has to investigate a person applying for a license.
Section 53.104(a) states that, if a licensing authority determines that a ground for ineligibility does not exist, the authority shall notify the requestor in writing of the authority's determination on each ground of potential ineligibility. Section 53.104(b) provides that, if a licensing authority determines that the requestor is ineligible for a license, the licensing authority shall issue a letter setting out each basis for potential ineligibility and the authority's determination as to eligibility. Further, in the absence of new evidence known to but not disclosed by the requestor, or not reasonably available to the licensing authority at the time the letter is issued, the authority's ruling on the request determines the requestor's eligibility with respect to the grounds for potential ineligibility set out in the letter. Section 53.104(c) states that a licensing authority must provide notice under §53.104(a) or issue a letter under §53.104(b) not later than the 90th day after the date the authority receives the request.
Section 53.105 provides that a licensing authority may charge a person requesting an evaluation under the Occupations Code Chapter 53, Subchapter D, a fee adopted by the authority. Fees adopted by a licensing authority under Subchapter D must be in an amount sufficient to cover the cost of administering Subchapter D.
Section 301.257(a) states that a person may petition the Board for a declaratory order as to the person's eligibility for a license under the Occupations Code Chapter 301 if the person has reason to believe that the person is ineligible for the license and is enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse or vocational nurse or is an applicant for a license.
Section 301.257(b) provides that the petition must state the basis for the person's potential ineligibility.
Section 301.257(c) states that the Board has the same powers to investigate the petition and the person's eligibility that it has to investigate a person applying for a license.
Section 301.257(d) provides that the petitioner or the Board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.
Section 301.257(e) states that, if the Board determines that a ground for ineligibility does not exist, instead of issuing an order, the Board shall notify the petitioner in writing of the Board's determination on each ground of potential ineligibility. If the Board proposes to find that the petitioner is ineligible for a license, the petitioner is entitled to a hearing before the State Office of Administrative Hearings.
Section 301.257(f) provides that the Board's order must set out each basis for potential ineligibility and the Board's determination as to eligibility. In the absence of new evidence known to but not disclosed by the petitioner or not reasonably available to the Board at the time the order is issued, the Board's ruling on the petition determines the person's eligibility with respect to the grounds for potential ineligibility set out in the written notice or order.
Section 301.257(g) states that the Board may require an individual accepted for enrollment or enrolled in an educational program preparing a student for initial licensure as a registered nurse or vocational nurse to submit information to the Board to permit the Board to determine whether the person is aware of the conditions that may disqualify the person from licensure as a registered nurse or vocational nurse on graduation and of the person's right to petition the Board for a declaratory order under §301.257. Instead of requiring the person to submit the information, the Board may require the educational program to collect and submit the information on each person accepted for enrollment or enrolled in the program.
Section 301.257(h) provides that the information required under §301.257(g) must be submitted in a form approved by the Board.
Section 301.257(i) states that, if, as a result of information provided under §301.257(g) the Board determines that a person may not be eligible for a license on graduation, the Board shall notify the educational program of its determination.
Section 301.151 authorizes the Board to adopt and enforce rules consistent with the Occupations Code 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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 22, 2010.
TRD-201003574
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: July 12, 2010
Proposal publication date: May 21, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) adopts new §213.34 (relating to Deferred Disciplinary Action Pilot Program) without changes to the proposed text published in the May 21, 2010, issue of the Texas Register (35 TexReg 3946).
REASONED JUSTIFICATION. The adopted new section is necessary to implement Senate Bill (SB) 1415, enacted by the 81st Legislature, Regular Session, effective September 1, 2009, which adds new §301.1607 to the Occupations Code Chapter 301.
Background
The 80th Texas Legislature enacted SB 993, Regular Session, effective September 1, 2007, in order to promote a less punitive regulatory environment for individuals who commit minor violations of the Nursing Practice Act (Occupations Code Chapter 301) and Board rules. SB 1415 was intended to build upon the principles established in SB 993 by authorizing the deferral of final disciplinary actions against individuals as an alternative method of resolving certain violations of the Nursing Practice Act and Board rules. (TEXAS SENATE STATE AFFAIRS COMMITTEE, BILL ANALYSIS (Enrolled), SB 1415, 81st Legislature, Regular Session (October 8, 2009)). Specifically, SB 1415 directs the Board to determine the feasibility of conducting a pilot program to evaluate the efficacy and effect of deferring a final disciplinary action against an individual for minor violations of the Nursing Practice Act and Board rules. Further, if the Board determines that such a pilot program is feasible, SB 1415 requires the Board to develop and implement the pilot program no later than February 1, 2011. SB 1415 also establishes several parameters for the pilot program.
First, SB 1415 authorizes the Board to defer a final disciplinary action against an individual for a violation of the Nursing Practice Act and Board rules. If the individual successfully completes all of the conditions of the deferred disciplinary action, SB 1415 authorizes the Board to dismiss the originating complaint filed against the individual. Second, SB 1415 prohibits the pilot program from including any disciplinary case that is serious enough to warrant resolution through the issuance of a reprimand or the denial, suspension, or revocation of an individual's nursing license. The Board has developed and adopted a range of disciplinary actions that may be imposed against an individual for violations of the Nursing Practice Act and Board rules. These disciplinary actions range from less serious actions, such as the issuance of a remedial education order, to more serious actions, such as the issuance of a reprimand or the suspension or revocation of an individual's nursing license. SB 1415 limits the types of disciplinary cases that may be included in the pilot program to those in which the Board proposes to issue a disciplinary action that is less serious than a reprimand. Such disciplinary actions include the issuance of a fine, remedial education, remedial education with a fine, a warning, a warning with a fine, a warning with stipulations, or a warning with stipulations and a fine. These disciplinary actions are less serious in nature than those resulting in the issuance of a reprimand or the suspension, revocation, or denial of a nursing license. Further, the Board utilizes these types of disciplinary actions to resolve violations of the Nursing Practice Act and Board rules that involve a relatively low risk of harm to the public. Third, SB 1415 makes clear that a deferred disciplinary action under the pilot program is not confidential until such time as an individual completes all of the conditions of the deferred disciplinary action and the originating complaint filed against the individual is dismissed by the Board. At that time, the deferred disciplinary action becomes confidential by law, to the same extent that a complaint is confidential under the Occupations Code §301.466. Pursuant to §301.466, a complaint is confidential and generally not subject to public disclosure, except that a complaint may be disclosed to: (i) a person involved with the Board in a disciplinary action against a nurse; (ii) a nursing licensing or disciplinary board in another jurisdiction; (iii) a peer assistance program approved by the Board under the Health and Safety Code Chapter 467; (iv) a law enforcement agency; and (v) a person engaged in bona fide research, if all information identifying a specific individual has been deleted from the complaint. Fourth, SB 1415 authorizes the Board to treat a deferred disciplinary action under the pilot program as prior disciplinary history if an individual commits a subsequent violation of the Nursing Practice Act and Board rules and is subject to Board discipline. Finally, SB 14 requires the Board to appoint an advisory committee to assist the Board in overseeing the pilot program and its evaluation.
Feasibility
SB 1415 requires the Board to determine the feasibility of conducting a deferred disciplinary action pilot program no later than February 1, 2010. The Board reviewed the requirements of SB 1415 at its October, 2009, and January, 2010, meetings. At that time, the Board identified several factors that were relevant to its determination of the feasibility of a pilot program under SB 1415.
First, the Board reviewed the results of a nationwide survey of other state boards of nursing. The survey was conducted to determine if any other state nursing board had implemented a program similar to the pilot program contemplated by SB 1415. Nine other state boards responded to the survey, including Kentucky, Ohio, North Carolina, Massachusetts, Minnesota, Mississippi, Vermont, Louisiana, and North Dakota. Massachusetts also provided additional information to the Board regarding 26 other state boards of nursing that had responded to a similar survey conducted by Massachusetts in 2006. These states included Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maine, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, Oklahoma, South Dakota, Tennessee, Utah, West Virginia, Wyoming, and Washington, D.C. While several states reported the implementation of expungement programs in their states, no other state nursing board reported the implementation of a deferred disciplinary action program. SB 1415 does not require the expungement of a deferred disciplinary action under the pilot program. However, SB 1415 does address the confidentiality of a deferred disciplinary action once an individual successfully completes the terms of the deferred disciplinary action. As such, the Board determined that it was necessary to review the expungement programs of the responding state boards.
In reviewing the expungement programs of other states, the Board identified the following commonalities: (i) the types of orders that were eligible for expungement were limited, either by the seriousness of the violation or the specific type of violation; (ii) generally, disciplinary orders could not be expunged until a specified period of time had passed; (iii) the terms of a disciplinary order must have been fully completed prior to the expungement of the order; and (iv) no additional disciplinary history could exist prior to the expungement of a disciplinary order. The Board also noted that the majority of state nursing boards responding to the survey reported having no statutory authorization to expunge final disciplinary actions.
The Board also considered the mandatory reporting requirements of the Nurse Licensure Compact (Compact), authorized under the Occupations Code Chapter 304, and the rules regarding membership of the Compact, as set forth in Chapter 220 of this title (relating to Nurse Licensure Compact), in conjunction with the confidentiality requirements of SB 1415. Texas is a member (party state) of the Compact. The Compact was formed to facilitate cooperation among state nursing boards in the areas of nurse regulation, investigation, and disciplinary action. As a member of the Compact, the Board is required to promptly report any action against an individual's nursing license to the National Council of State Boards of Nursing (NCSBN). Party states utilize this investigatory and disciplinary information to make decisions about the licensure status of individuals in their states. While party states are required to timely report such information to NCSBN, the Compact recognizes state expungement statutes and permits information subject to such statutes to be removed from the database. SB 1415 does not require the expungement of deferred disciplinary actions. Even after a deferred disciplinary action becomes confidential under the provisions of SB 1415, the Board is authorized to share information about the deferred disciplinary action with other nursing licensing or disciplinary boards, in accordance with the provisions of §301.466. The Board carefully considered the potential complications associated with doing so, however. For example, the Board determined that if it continued to share information concerning a deferred disciplinary action with other state boards of nursing through the NCSBN database, it might not be able to fully control the dissemination of the information beyond the NCSBN database. The Board did not find that such a risk, however, would make the pilot program infeasible. Rather, after further consultation with NCSBN, the Board determined that it would be possible to continue to share information with other state boards of nursing while simultaneously safeguarding the inadvertent disclosure of any confidential information beyond the NCSBN database.
The Board also considered the mandatory reporting requirements of the national Healthcare Integrity and Protection Data Bank (HIPDB), in conjunction with the confidentiality provisions of SB 1415. HIPDB is a national database that was created by the Secretary of the U.S. Department of Health and Human Services, in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), to combat fraud and abuse in health insurance and health care delivery. Federal and state licensing and certification agencies are required to report final adverse licensure actions (revocations, suspensions, and censures) taken against health care practitioners, providers, and suppliers to HIPDB. Although the information reported to HIPDB is not available to the general public, it is viewable by federal and state agencies and certain employers. Further, once a disciplinary action has been reported to HIPDB, it may only be expunged under very limited circumstances, such as where an agency made an error in the original report to HIPDB or where a disciplinary action against an individual was appealed and overturned. After consultation with HIPDB, the Board determined that information regarding a deferred disciplinary action could not be removed or expunged from HIPDB, despite becoming confidential under Texas law. In its discussions with the Board, HIPDB indicated that such removal or expungement would be inconsistent with the purpose of the federal database. Further, HIPDB stated that its federal enabling legislation would pre-empt any confidentiality requirements of SB 1415. As a result, the Board determined that, although the general public would not be able to view information regarding a completed deferred disciplinary action in HIPDB, the Board would be unable to prevent the disclosure of such information to other federal and state agencies and employers utilizing the database. The Board further determined that the disclosure of this information, although completely outside of the Board's control, could be inconsistent with the confidentiality provisions of SB 1415. The Board ultimately determined, however, that such disclosure would not make the pilot program infeasible.
Finally, the Board considered the recommendations of the Eligibility and Disciplinary Advisory Committee (Committee). The Committee convened on September 17, 2009, and December 7, 2009, to consider the provisions of SB 1415 and to discuss the feasibility of a deferred disciplinary action pilot program. While the Committee generally agreed that such a program was feasible, the Committee was concerned about the implementation of such a program, particularly regarding the confidentiality of a completed deferred disciplinary action. Pursuant to the Occupations Code §301.469 and §301.466(c), final disciplinary actions that are imposed against individuals for violations of the Nursing Practice Act and Board rules are subject to public disclosure. The dissemination of this information serves an important purpose, as it alerts employers, potential employers, and consumers of nursing services of the disciplinary actions taken against individuals for violations of the Nursing Practice Act and Board rules. Currently, final disciplinary actions imposed against individuals for violations of the Nursing Practice Act and Board rules remain a permanent part of an individual's licensing history and are available to the public upon request. SB 1415 alters this arrangement by making a deferred disciplinary action confidential once an individual successfully completes all of the conditions required by the deferred disciplinary action. Several committee members expressed concern over this aspect of the program for several reasons. Final disciplinary actions contain specific findings of fact, conclusions of law, and probationary requirements that are designed to remediate an individual's conduct, if possible, and monitor an individual's practice to ensure the safe delivery of nursing care. Information regarding an individual's conduct and the specific violations of the Nursing Practice Act and Board rules are contained within these final disciplinary actions. Such conduct could include practice errors, such as medication administration or nursing documentation errors, or could relate to instances of fraudulent conduct or prior criminal history. It is vital that employers, potential employers, and consumers of nursing services are aware of an individual's conduct in order to make informed decisions about employing an individual with a disciplinary history or receiving nursing care from an individual with a disciplinary history. Under the pilot program, however, the details surrounding a deferred disciplinary action, including the related findings of fact, will no longer be available for public review once the action has been successfully completed by the individual and the originating complaint is dismissed by the Board. Therefore, it may be more difficult for employers to identify problematic patterns of conduct. It may also make it more difficult for consumers to make informed choices regarding their nursing care. This is especially true in the area of home health, where an individual's prior criminal history is especially relevant.
In an effort to address these concerns, the Committee recommended that the Board establish certain limitations for the pilot program. First, the Committee recommended that the pilot program only be available to individuals with no prior disciplinary history. Second, the Committee recommended that the pilot program only include disciplinary cases that were capable of being resolved through a remedial education order or the issuance of a warning with stipulations. Third, the Committee recommended that an individual be eligible to participate in the pilot program only if the individual demonstrated that a program of remediation could address the individual's practice deficit, knowledge deficit, or situational awareness. Fourth, the Committee recommended that a deferred disciplinary action be available to the public for a minimum of five years. Finally, the Committee recommended that violations of the Nursing Practice Act and Board rules that involved certain intentional acts, falsification, deception, and chemical dependency or substance abuse not be included in the pilot program.
The Board reviewed the recommendations of the Committee at its January, 2010, meeting. After carefully considering the results of the survey of other state boards of nursing, the mandatory reporting requirements of the Compact and HIPDB, and the recommendations of the Committee, the Board determined that the pilot program was feasible. However, the Board agreed with the concerns of the Committee and also determined that the pilot program should be limited to protect the safety of the public. In addition to approving and adopting the limitations recommended by the Committee, the Board also determined that additional limitations were necessary to adequately balance the private interests of individuals eligible for the pilot program with the interests of the general public.
First, the Board determined that the pilot program should only be available to individuals as a condition of settlement by agreement prior to initiating proceedings in a contested case matter before the State Office of Administrative Hearings (SOAH). Second, the Board determined that the pilot program should not include violations of the Nursing Practice Act or Board rules that involve sexual misconduct or criminal conduct. Third, the Board determined that a deferred disciplinary action should be treated as prior disciplinary history if an individual commits a subsequent violation of the Nursing Practice Act and Board rules. Finally, the Board determined that an action should no longer be treated as a deferred disciplinary action under the pilot program if an individual violates or fails to meet one of the conditions of a deferred disciplinary action.
The Board approved the feasibility of the pilot program at its January, 2010, meeting. Further, the Board approved the adoption of new rules to implement the pilot program at its April, 2010, meeting. Adopted new §213.34 establishes the parameters and limitations of the pilot program, as determined necessary by the Board.
Adopted new §213.34(a) and (b) specify the purpose of the new rules and prescribe when the pilot program will begin and end. Pursuant to SB 1415, the pilot program will begin on February 1, 2011, and will end no later than January 1, 2014. Further, although SB 1415 became effective on September 1, 2009, its provisions apply to actions for violations of Chapter 301 that were pending on September 1, 2009, or commenced on or after September 1, 2009. As such, the Board has determined that the pilot program will include certain violations of the Nursing Practice Act and Board rules that were pending with the Board on or after September 1, 2009.
Adopted new §213.34(c), (d), and (e) establish the eligibility criteria for the pilot program. First, adopted new §213.34(c) clarifies that the opportunity to participate in the pilot program is at the sole discretion of the Executive Director of the Board. Second, adopted new §213.34(d) and (e) prescribe the specific limitations and restrictions of the pilot program. These adopted new subsections are important for several reasons. First, a deferred disciplinary action pilot program is a new concept in nursing discipline. To the Board's knowledge, no other state board of nursing has ever implemented such a program. Therefore, the success of such a program has yet to be measured. While the Board recognizes the value of a less punitive, alternative method of resolving minor violations of the Nursing Practice Act and Board rules, the Board remains committed to protect the public from the incompetent, unethical, and illegal conduct of its licensees. The Board fulfills this obligation, in part, by notifying the public of final disciplinary actions taken against individuals for violations of the Nursing Practice Act and Board rules. Because SB 1415 makes a deferred disciplinary action confidential once an individual successfully completes the conditions of the action and the Board dismisses the originating complaint, the Board has determined that only certain violations of the Nursing Practice Act and Board rules are appropriate for resolution through the pilot program. Only minor violations of the Nursing Practice Act and Board rules that involve a low risk of harm to the public will be eligible for resolution through the pilot program. Violations of the Nursing Practice Act and Board rules that involve sexual misconduct, criminal conduct, intentional conduct, falsification, deception, and substance abuse or chemical dependency will not be included in the pilot program because such conduct involves a higher risk of harm to the public and carries a higher risk of recidivism. The Board has determined that any disciplinary action for such conduct should be available for public disclosure indefinitely. Violations of the Nursing Practice Act and Board rules that include minor practice errors, such as medication administration or documentation errors, however, are less likely to require public notification for as lengthy a period of time. The Board has determined that these types of violations are more apt to be successfully remediated through additional education and minimal Board monitoring. As such, the Board has limited the pilot program to include only those minor violations of the Nursing Practice Act and Board rules that are appropriate for resolution through the issuance of a warning, a warning with stipulations, a warning with stipulations and a fine, a warning with a fine, remedial education, remedial education with a fine, or a fine. These specific disciplinary actions are reserved for minor violations of the Nursing Practice Act and Board rules that involve a low risk of harm to the public.
Second, the Board has determined that an individual's participation in the pilot program must be on a voluntary basis. That is, an individual must agree to meet all of the conditions of a deferred disciplinary action as required by the Board. The conditions that will be imposed by the Board as part of a deferred disciplinary action will be designed to remediate an individual's practice or knowledge deficiencies. In order to be able to remediate such deficiencies, an individual must first be willing to accept responsibility for his or her conduct. The pilot program provides individuals with a less punitive method of resolving violations of the Nursing Practice Act and Board rules. Its success depends, in part, on an individual's willingness to participate in the program, regardless of the specific probationary conditions required by the Board. If an individual is unwilling to abide by the prescribed requirements of the pilot program, there is little likelihood that the individual will be able to successfully complete the program. Further, the Board has determined that an individual must be willing to accept the conditions associated with participating in the pilot program when the Board first offers the individual the opportunity to do so. While an individual is entitled to request a hearing at SOAH regarding disputed disciplinary matters, the Board has determined that participation in the pilot program will not be available as a remedy at a SOAH proceeding. As such, the pilot program will be reserved for only those individuals who accept responsibility for their conduct and agree to the terms of a deferred disciplinary action prior to initiating a formal proceeding at SOAH.
Adopted new §213.34(f) further limits the pilot program to individuals who are licensed to practice nursing in the State of Texas. This adopted new subsection excludes individuals who have filed: (i) a petition for a declaratory order of eligibility under §213.30 of this title (relating to Declaratory Order of Eligibility for Licensure); or (ii) an application for licensure under §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate From Nursing Education Programs Outside of United States' Jurisdiction), or §217.5 of this title (relating to Temporary License and Endorsement that is treated as a petition for a declaratory order of eligibility under §213.30. Pursuant to the Occupations Code §301.257, an individual may seek an eligibility determination from the Board if the individual is enrolled in a nursing education program, plans to enroll in a nursing education program, or is an applicant for licensure. Individuals with significant criminal history, issues regarding mental health status, or issues involving substance abuse or chemical dependency may be ineligible for licensure. The Board considers such eligibility issues to be serious in nature and highly relevant to an individual's ability to safely practice nursing. As such, the Board reviews requests for eligibility determinations carefully. Even if an individual is deemed eligible for licensure, the Board usually requires the individual to undergo Board monitoring and supervision for a specified period of time to ensure the individual is capable of practicing nursing safely. Individuals who seek eligibility determinations from the Board have yet to be employed as nurses in the State of Texas. As such, it is of the utmost importance that potential employers are notified of an individual's eligibility issues and any Board-required conditions of employment in order to make safe and appropriate hiring decisions. Further, consumers of nursing care should be made aware of an individual's eligibility issues in order to make safe and appropriate nursing care choices for themselves and their loved ones. In the interest of public safety, the Board has determined that all final eligibility determinations should be available for public disclosure indefinitely, and must be excluded from the pilot program.
Adopted new §213.34(f) also excludes individuals who are practicing nursing in Texas on a nurse licensure compact privilege from participating in the pilot program. As previously stated, the Board has carefully considered the mandatory reporting requirements of the Compact, in conjunction with the confidentiality requirements of SB 1415. As a member of the Compact, the Board may take disciplinary action against an individual's nurse licensure compact privilege to practice nursing in Texas for a violation of the Nursing Practice Act and Board rules. Under the Compact, the individual's home state then has the option of taking a consistent disciplinary action against the individual's nursing license for the same conduct. However, to the Board's knowledge, no other state board of nursing has implemented a deferred disciplinary action pilot program. Thus, if the Board proposes to take a disciplinary action against an individual's nurse licensure compact privilege to practice nursing in Texas for a violation of the Nursing Practice Act and Board rules, and offers the individual a deferred disciplinary action, the individual's home state may be unable to take a consistent disciplinary action against the individual's nursing license. In order to ensure that all other state boards of nursing are able to take appropriate disciplinary actions against nurses licensed in their states, the Board has determined that the pilot program should exclude individuals practicing nursing in the state of Texas on a nurse licensure compact privilege.
Adopted new §213.34(g) and (h) are necessary to clarify the confidentiality provisions of SB 1415 and to address an individual's failure to successfully complete the required conditions of a deferred disciplinary action. First, proposed new §213.34(g) makes clear that a deferred disciplinary action will be available to the public: (i) for a minimum of five years; (ii) until such time as an individual successfully completes all of the conditions of the deferred disciplinary action; and (iii) until the Board dismisses the original complaint filed against the individual. Once all of these conditions are met, the deferred disciplinary action will become confidential and will not be available to the general public. These adopted new requirements are consistent with the confidentiality provisions of SB 1415 and strike an appropriate balance between the interests of individual licensees eligible for the pilot program and the interests of the general public. Because all violations of the Nursing Practice Act and Board rules merit Board review and remediation, where possible, the Board has determined that there should be a minimal amount of time in which a deferred disciplinary action is available for public disclosure, even for minor violations of the Nursing Practice Act and Board rules. Further, the Board has determined that it is reasonable and appropriate for a deferred disciplinary action to be available to the public for at least a five year time period. During this time, an individual will be required to complete all of the conditions of the deferred disciplinary action. Further, the individual will be required not to commit any other violations of the Nursing Practice Act and Board rules. This minimal amount of time should allow sufficient opportunity for the Board to determine if an individual's deficiencies have been successfully remediated. If an individual is able to demonstrate the successful completion of the conditions of the deferred disciplinary action, including no further violations of the Nursing Practice Act and Board rules, the Board will dismiss the originating complaint against the individual and the deferred disciplinary action will become confidential. While the Board agrees that the public should always be notified of a final disciplinary action taken against an individual, the Board recognizes that some minor violations of the Nursing Practice Act and Board rules can be successfully remediated. In cases where an individual has shown such successful remediation, the Board's concern that the individual will repeat the problematic conduct is minimized. In these cases, the individual's successful remediation justifies the removal of the final deferred disciplinary action from the public realm.
The Board retains its authority, however, to stay the dismissal of a complaint against an individual in cases where the individual fails to meet the requirements of the deferred disciplinary action or commits a subsequent violation of the Nursing Practice Act and Board rules during the pendency of the deferred disciplinary action. Adopted new §213.34(h) clarifies that an originating complaint will not be dismissed until a subsequent complaint for a violation of the Nursing Practice Act and Board rules has been resolved. Adopted new §213.34(h) further clarifies that the Board may treat a deferred disciplinary action as prior disciplinary history when considering the appropriate sanction for a subsequent violation of the Nursing Practice Act and Board rules. These adopted new requirements are necessary to ensure that the Board is able to take action in cases where an individual is unable to demonstrate his or her successful remediation. In such cases, the Board must be able to evaluate the seriousness of the individual's conduct and the corresponding danger to the public. Further, the Board must be able to provide notification to the public if the Board determines that the individual's behavior warrants such reporting. The pilot program provides individuals with a unique opportunity to resolve minor violations of the Nursing Practice Act and Board rules through a less punitive alternative to traditional discipline. The pilot program, however, is not intended to provide sanctuary to repeat offenders or to reduce the Board's ability to protect the safety of the public. As such, adopted new §213.34(h) is necessary to ensure that only those complaints that involve conduct that has been fully remediated are dismissed and made confidential under SB 1415.
Finally, adopted new §213.34(i) provides that the outcome and effectiveness of the pilot program will be evaluated by the Board on a regular basis. This adopted new requirement is necessary to implement the oversight requirements of SB 1415 and to ensure that the pilot program is reviewed on a regular basis to identify the program's strengths, weaknesses, successes, and failures, if any.
HOW THE SECTIONS WILL FUNCTION. The adopted title of §213.34 is "Deferred Disciplinary Action Pilot Program".
Adopted new §213.34(a) states that the section implements the deferred disciplinary action pilot program authorized by the Occupations Code §301.1607. Further, adopted new §213.34(a) provides that the pilot program will commence on February 1, 2011, and will conclude no later than January 1, 2014.
Adopted new §213.34(b) states that the purpose of the pilot program is to evaluate the efficacy and effect of Board deferral of final disciplinary actions against individuals for violations of the Nursing Practice Act and/or Board rules.
Adopted new §213.34(c) provides that the opportunity to enter into a deferred disciplinary order under the pilot program is at the sole discretion of the Executive Director.
Adopted new §213.34(d) states that a deferred disciplinary action under the pilot program will be available: (i) for individuals with no prior disciplinary history with the Board; (ii) for violations of the Nursing Practice Act and/or Board rules that are proposed for resolution through the issuance of a warning, a warning with stipulations, a warning with stipulations and a fine, a warning with a fine, remedial education, remedial education with a fine, or a fine; (iii) only as a condition of settlement by agreement prior to the initiation of proceedings before SOAH; (iv) only if the probationary stipulations outlined in the deferred disciplinary order are designed to address an individual's practice deficit, knowledge deficit, or lack of situational awareness; and (v) for violations of the Nursing Practice Act and/or Board rules that were pending with the Board on September 1, 2009, or after.
Adopted new §213.34(e) states that violations involving sexual misconduct, criminal conduct, intentional acts, falsification, deception, chemical dependency, or substance abuse will not be eligible for resolution through a deferred disciplinary action under the pilot program.
Adopted new §213.34(f) states that a deferred disciplinary action under the pilot program will not be available to: (i) an individual who files a petition for declaratory order under §213.30 of this title (relating to Declaratory Order of Eligibility for Licensure); (ii) an individual whose application under §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate From Nursing Education Programs Outside of United States' Jurisdiction), or §217.5 of this title (relating to Temporary License and Endorsement) is treated as a petition for declaratory order under §213.30 of this title; or (iii) an individual who is practicing nursing in Texas on a nurse licensure compact privilege.
Adopted new §213.34(g) provides that a deferred disciplinary order will be available to the public for a minimum of five years and until such time as an individual successfully completes all of the probationary stipulations required by the deferred disciplinary order and the originating complaint is dismissed by the Board. Further, adopted new §213.34(g) provides that, after such time, the deferred disciplinary order will not be available to the public.
Adopted new §213.34(h) states that, if an individual fails to comply with a probationary stipulation required by a deferred disciplinary order or if a subsequent complaint is filed against an individual during the pendency of the deferred disciplinary order, the Board will stay the dismissal of the originating complaint pending the resolution of the subsequent complaint. Adopted new §213.34(h) further states that, if the subsequent complaint is proposed for resolution through a disciplinary action under the Occupations Code Subchapter J, the Board will not dismiss the originating complaint, and the Board may treat the deferred disciplinary action as prior disciplinary action when considering the imposition of a disciplinary sanction.
Finally, adopted new §213.34(i) states that the outcome and effectiveness of the pilot program will be evaluated by the Board on a regular basis.
SUMMARY OF COMMENTS AND AGENCY RESPONSE. The Board did not receive any comments on the proposal.
STATUTORY AUTHORITY. The new section is adopted under Occupations Code §301.1607 and §301.151.
Section 301.1607(a) defines "deferred disciplinary action" as a final disciplinary action against a person licensed or regulated under the Occupations Code Chapter 301 that is deferred by the Board as provided by §301.1607.
Section 301.1607(b) requires the Board, not later than February 1, 2010, to determine the feasibility of conducting a pilot program designed to evaluate the efficacy and effect on the public's protection of Board deferral of disciplinary action against a person licensed or regulated under Chapter 301 in cases in which the Board proposes to impose a sanction other than a reprimand or a denial, suspension, or revocation of a license. Further, if the Board determines the pilot program is feasible, §301.1607(b) requires the Board to develop and implement the pilot program not later than February 1, 2011. Additionally, the pilot program must conclude not later than January 1, 2014.
Section 301.1607(c) states that the pilot program may not include cases in which the Board proposes to issue a reprimand or to deny, suspend, or revoke a license.
Section 301.1607(d) states that, during the time the pilot program is implemented and for any action or complaint for which the Board proposes to impose a sanction other than a reprimand or a denial, suspension, or revocation of a license, the Board may: (i) defer final disciplinary action the Board has proposed against a person licensed or regulated under Chapter 301 if the person conforms to conditions imposed by the Board, including any condition the Board could impose as a condition of probation under §301.468; and (ii) if the person successfully meets the imposed conditions, dismiss the complaint.
Section 301.1607(e) states that, except as otherwise provided by §301.1607(e), a deferred disciplinary action by the Board under the pilot program is not confidential and is subject to disclosure in accordance with the Government Code Chapter 552. If the person successfully meets the conditions imposed by the Board in deferring final disciplinary action and the Board dismisses the action or complaint, the deferred disciplinary action of the Board is confidential to the same extent as a complaint filed under §301.466.
Section 301.1607(f) provides that the Board may treat a deferred disciplinary action taken against a nurse under §301.1607 as a prior disciplinary action against the nurse when considering the imposition of a sanction for a subsequent violation of Chapter 301 or a rule or order adopted under Chapter 301.
Section 301.1607(g) states that the Board may contract with a third party to evaluate the pilot program established under §301.1607.
Section 301.1607(h) states that the Board shall appoint an advisory committee to assist the Board in overseeing the pilot program and its evaluation. Further, the committee must include representatives of public advocacy organizations.
Finally, §301.1607(i) states that §301.1607 expires September 1, 2014.
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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 22, 2010.
TRD-201003573
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: July 12, 2010
Proposal publication date: May 21, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) adopts amendments to §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions), §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction) and §217.5 (relating to Temporary License and Endorsement) without changes to the proposed text published in the May 21, 2010, issue of the Texas Register (35 TexReg 3953).
REASONED JUSTIFICATION. The amendments are adopted under the Occupations Code §§53.101 - 53.105, 301.257, and 301.151 and are necessary to clarify existing language within the sections and to enhance consistency among Board rules related to eligibility determinations. Specifically, the adopted amendments eliminate (i) minor inconsistencies among the sections and (ii) redundant requirements that are more appropriately addressed in §213.30 of this title (relating to Declaratory Order of Eligibility for Licensure).
The Occupations Code §301.257 authorizes an individual to petition the Board for a declaratory order regarding the individual's eligibility for licensure under Chapter 301 if the individual is enrolled, or is planning to enroll, in a nursing education program or is an applicant for licensure, and has reason to believe he or she is ineligible for licensure. The Board adopted requirements for evaluating an individual's eligibility for licensure under §301.257 in 1998. The Board has consistently evaluated an individual's eligibility for licensure pursuant to those requirements since that time.
Section 213.30 sets forth the Board's specific procedures and requirements for evaluating an individual's eligibility for licensure. Pursuant to §213.30, an individual who has reason to believe that he or she may be ineligible for licensure may petition the Board for a declaratory order of eligibility. An individual may be ineligible for licensure for a variety of reasons, including prior criminal or disciplinary history, mental illness, or chemical dependency. The Board considers eligibility determinations to be serious in nature and highly relevant to an individual's ability to safely practice nursing. As such, the Board diligently investigates every request for an eligibility determination pursuant to the requirements of §213.30 and Chapter 301.
Currently, individuals may seek licensure from the Board in a variety of ways, depending upon the unique set of factors applicable to the particular individual seeking licensure. For example, an individual may submit an application for licensure by examination to the Board under §217.2 if the individual graduated from a nursing education program within the United States. An individual may submit an application for licensure to the Board under §217.4 if the individual graduated from a nursing education program outside of the United States. An individual may submit an application for licensure by endorsement to the Board under §217.5 if the individual has been licensed in another jurisdiction prior to applying for licensure in Texas. Finally, an individual may submit a petition for a declaratory order to the Board under §213.30. Regardless of the particular document filed by an individual, however, the Board reviews all eligibility issues in accordance with the requirements of §213.30 and requires all individuals seeking an eligibility determination from the Board to comply with its requirements.
The Board originally adopted §§217.2(b), 217.4(d), and 217.5(e) to ensure a fair and balanced process for all individuals requiring eligibility determinations from the Board. Since their enactment, these rules have ensured that all eligibility issues are reviewed by the Board through a single, unified process and that all similarly situated individuals are treated equally by the Board. The adopted amendments to §§217.2(b), 217.4(d), and 217.5(e) do not add new requirements to these sections or substantively alter the existing provisions of these sections. Further, the adopted amendments do not alter the Board's historic interpretation or application of the provisions of these rules. Rather, the Board is adopting amendments to these sections in order to ensure continuing consistency and clarity in the interpretation and application of these rules.
Currently, all eligibility cases are categorized as "applicant" cases or "petitioner" cases. "Applicant" cases are those cases in which an eligibility determination is required for an individual who has filed an application with the Board pursuant to §§217.2(b), 217.4(d), or 217.5(e). "Petitioner" cases, on the other hand, are those cases in which an eligibility determination is required for an individual who has filed a petition for a declaratory order with the Board pursuant to §213.30. Despite these differences in terminology, there are no substantive differences in the investigation of an eligibility case or the Board's evaluation of an individual's eligibility. "Applicant" and "petitioner" cases are reviewed under the same eligibility processes. All eligibility determinations are made pursuant to the same eligibility criteria. Further, "applicants" and "petitioners" are required to submit the same fee to the Board for an eligibility determination. Further, if the Board determines that an individual is eligible for licensure, the Board imposes the same probationary requirements on all similarly situated individuals, regardless of their status as an "applicant" or "petitioner". Because "applicants" and "petitioners" are treated equally for purposes of eligibility determinations, the Board has determined that any distinction in terminology should be eliminated from its eligibility processes and final eligibility orders. This change should promote consistency among the Board's final eligibility orders and reduce any confusion among members of the public regarding final eligibility orders.
The Board is also adopting amendments to §§217.2(b), 217.4(d), and 217.5(e) to eliminate redundant provisions that are more appropriately addressed in §213.30. The existing provisions of §213.30 include the requirements that are being eliminated in §§217.2(b), 217.4(d), and 217.5(e). Section 213.30 prescribes the specific procedures and requirements that apply to eligibility determinations, including provisions regarding the Board's final eligibility determination and an individual's options for re-petitioning the Board for licensure. The Board has determined that all provisions addressing the specific procedures and requirements relating to an eligibility determination should be centrally located in §213.30 instead of being scattered throughout the Board's rules. Locating these provisions in a central rule promotes clarity, consistency, and a better understanding of the Board's requirements. The adopted amendments clarify that an applicant who should have had an eligibility issue determined by way of a petition for declaratory order under §301.257 will be treated as a petitioner under §213.30 and will be required to pay the fee required by that section. This clarification reiterates that "applicants" under §§217.2(b), 217.4(d), and 217.5(e) who require eligibility determinations will be treated the same as "petitioners" under §213.30 and that the procedures and requirements of §213.30 will apply equally to both.
Finally, the Board has determined that clarifying the existing language of §§217.2(b), 217.4(d), and 217.5(e) will not alter the Board's historical interpretation or application of these sections. The adopted changes are designed to remove any ambiguity or confusion surrounding the applicability of these sections and are not anticipated to result in a change in Board application or interpretation of these requirements in the future.
HOW THE SECTIONS WILL FUNCTION. Adopted §217.2(b) states that, should it be ascertained from the application filed, or from other sources, that the applicant should have had an eligibility issue determined by way of a petition for declaratory order pursuant to the Occupations Code §301.257, then the application will be treated and processed as a petition for declaratory order under §213.30 (relating to Declaratory Order of Eligibility for Licensure), and the applicant will be treated as a petitioner under that section and will be required to pay the non-refundable fee required by that section.
Adopted §217.4(d) states that, should it be ascertained from the application filed, or from other sources, that the applicant should have had an eligibility issue determined by way of a petition for declaratory order pursuant to the Occupations Code §301.257, then the application will be treated and processed as a petition for declaratory order under §213.30 (relating to Declaratory Order of Eligibility for Licensure), and the applicant will be treated as a petitioner under that section and will be required to pay the non-refundable fee required by that section.
Adopted §217.5(e) states that, should it be ascertained from the application filed, or from other sources, that the applicant should have had an eligibility issue determined by way of a petition for declaratory order pursuant to the Occupations Code §301.257, then the application will be treated and processed as a petition for declaratory order under §213.30 (relating to Declaratory Order of Eligibility for Licensure), and the applicant will be treated as a petitioner under that section and will be required to pay the non-refundable fee required by that section.
SUMMARY OF COMMENTS AND AGENCY RESPONSE. The Board did not receive any comments on the proposal.
STATUTORY AUTHORITY. The amendments are adopted under the Occupations Code §§53.101 - 53.105, 301.257, and 301.151. Section 53.101(1) defines "license" as a license, certificate, registration, permit, or other authorization that is issued by a licensing authority and a person must obtain to practice or engage in a particular business, occupation, or profession. Section 53.101(2) defines "licensing authority" as a department, commission, board, office, or other agency of the state that issues a license.
Section 53.102(a) states that a person may request a licensing authority to issue a criminal history evaluation letter regarding the person's eligibility for a license issued by that authority if the person is enrolled, or planning to enroll, in an educational program that prepares a person for an initial license or is planning to take an examination for an initial license and has reason to believe that the person is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense. Section 53.102(b) states that the request must state the basis for the person's potential ineligibility.
Section 53.103 provides that a licensing authority has the same powers to investigate a request submitted under the Occupations Code Chapter 53, Subchapter D, and the requestor's eligibility that the authority has to investigate a person applying for a license.
Section 53.104(a) states that, if a licensing authority determines that a ground for ineligibility does not exist, the authority shall notify the requestor in writing of the authority's determination on each ground of potential ineligibility. Section 53.104(b) provides that, if a licensing authority determines that the requestor is ineligible for a license, the licensing authority shall issue a letter setting out each basis for potential ineligibility and the authority's determination as to eligibility. Further, in the absence of new evidence known to but not disclosed by the requestor, or not reasonably available to the licensing authority at the time the letter is issued, the authority's ruling on the request determines the requestor's eligibility with respect to the grounds for potential ineligibility set out in the letter. Section 53.104(c) states that a licensing authority must provide notice under §53.104(a) or issue a letter under §53.104(b) not later than the 90th day after the date the authority receives the request.
Section 53.105 provides that a licensing authority may charge a person requesting an evaluation under the Occupations Code Chapter 53, Subchapter D, a fee adopted by the authority. Fees adopted by a licensing authority under Subchapter D must be in an amount sufficient to cover the cost of administering Subchapter D.
Section 301.257(a) states that a person may petition the Board for a declaratory order as to the person's eligibility for a license under the Occupations Code Chapter 301 if the person has reason to believe that the person is ineligible for the license and is enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse or vocational nurse or is an applicant for a license.
Section 301.257(b) provides that the petition must state the basis for the person's potential ineligibility.
Section 301.257(c) states that the Board has the same powers to investigate the petition and the person's eligibility that it has to investigate a person applying for a license.
Section 301.257(d) provides that the petitioner or the Board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.
Section 301.257(e) states that, if the Board determines that a ground for ineligibility does not exist, instead of issuing an order, the Board shall notify the petitioner in writing of the Board's determination on each ground of potential ineligibility. If the Board proposes to find that the petitioner is ineligible for a license, the petitioner is entitled to a hearing before the State Office of Administrative Hearings.
Section 301.257(f) provides that the Board's order must set out each basis for potential ineligibility and the Board's determination as to eligibility. In the absence of new evidence known to but not disclosed by the petitioner or not reasonably available to the Board at the time the order is issued, the Board's ruling on the petition determines the person's eligibility with respect to the grounds for potential ineligibility set out in the written notice or order.
Section 301.257(g) states that the Board may require an individual accepted for enrollment or enrolled in an educational program preparing a student for initial licensure as a registered nurse or vocational nurse to submit information to the Board to permit the Board to determine whether the person is aware of the conditions that may disqualify the person from licensure as a registered nurse or vocational nurse on graduation and of the person's right to petition the Board for a declaratory order under §301.257. Instead of requiring the person to submit the information, the Board may require the educational program to collect and submit the information on each person accepted for enrollment or enrolled in the program.
Section 301.257(h) provides that the information required under §301.257(g) must be submitted in a form approved by the Board.
Section 301.257(i) states that, if, as a result of information provided under §301.257(g) the Board determines that a person may not be eligible for a license on graduation, the Board shall notify the educational program of its determination.
Section 301.151 authorizes the Board to adopt and enforce rules consistent with the Occupations Code 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 Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 22, 2010.
TRD-201003575
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Effective date: July 12, 2010
Proposal publication date: May 21, 2010
For further information, please call: (512) 305-6822