PART 5. STATE BOARD OF DENTAL EXAMINERS
CHAPTER 100. GENERAL PROVISIONS
The State Board of Dental Examiners (Board) proposes amendments to §100.10, relating to the Executive Director. The amendments were suggested by staff and authorize the Executive Director to accept voluntary surrender orders.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing the proposal will be the protection of the public. Currently, when a dentist surrenders his or her license, the voluntary surrender does not take effect until it is ratified by the full Board at the following Board meeting, which could be months later. Under the proposed amendment, the voluntary surrender would take effect as soon as it was accepted by the Executive Director. The amendment also requires the Executive Director to report any actions taken under this section to the Board at the next regularly scheduled meeting.
Ms. Meek has also determined that for each year of the first five years the amended section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rule as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The amendments are proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§100.10.Executive Director.
(a) The Board [board] may determine
qualifications for and retain an Executive Director [executive
director] who shall be the chief executive officer of the agency.
(b) The Executive Director [executive director
] shall have the authority and responsibility for the
operations and administration of the agency and such additional powers
and duties as prescribed by the Board [board].
As chief executive of the agency, the Executive Director [
executive director] shall manage all aspects of the agency,
including personnel, financial and other resources, in support of
the Dental Practice Act, Board [board] rules
and policies, the Board's [board's] mission
and strategic plan.
(c) The Executive Director [executive director
] shall attend all meetings of the Board [board
] and may offer recommendations to the Board [board
], but shall not vote on matters brought before the
Board [board].
(d) The Executive Director [executive
director], with the Board's [board's]
consent, may employ an Assistant Executive Director [assistant
executive director] to perform the Executive Director's [
executive director's] duties when the Executive Director [
executive director] is absent or unable to act.
(e) The Executive Director is authorized to accept the voluntary surrender of a license. Board ratification is not required. The Executive Director will report summaries of dispositions to the Board at its regular meetings.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 7, 2010.
TRD-201002479
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes an amendment to §103.5, relating to staggered dental hygiene registrations. The amendment was proposed to update the section to reflect changes made by the 81st Legislature.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing the proposal will be to update the section to reflect changes made by Senate Bill 887, 81st Legislature, 2009 Regular Session, effective date September 1, 2009. Specifically, amendments to Dental Practice Act §257.001 require dental hygiene licensees to pay license fee within 30 days of initial licensure.
Ms. Meek has also determined that for each year of the first five years the amended section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rule as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The amendment is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§103.5.Staggered Dental Hygiene Registrations.
(a) - (f) (No change.)
(g) An initial license issued under this chapter on or after September 1, 2009 expires on the 30th day after the date the license is issued if the holder of the license fails to pay the required license fee on or before the expiration date.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 7, 2010.
TRD-201002480
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
SUBCHAPTER A. PROCEDURES GOVERNING GRIEVANCES, HEARINGS, AND APPEALS
22 TAC §§107.11, 107.15, 107.17, 107.21 - 107.25, 107.47, 107.48, 107.50, 107.54, 107.55, 107.63
The State Board of Dental Examiners (Board) proposes amendments to §107.11, relating to definitions; amendments to §107.15, relating to computation of time; amendments to §107.17, relating to service in non-rulemaking proceedings; amendments to §107.21, relating to appearances personally or by representative; new §107.22, relating to pleading; new §107.23, relating to commencement of formal disciplinary proceedings; new §107.24, relating to respondent's answer in a disciplinary matter; new §107.25, relating to formal proceedings; new §107.47, relating to depositions; amendments to §107.48, relating to subpoenas; amendments to §107.50, relating to filing of exceptions, briefs, and replies; amendments to §107.54, relating to administrative finality; amendments to §107.55, relating to motions for rehearing; and amendments to §107.63, relating to informal disposition and alternative dispute resolution. The new sections and amendments were suggested by staff and update the procedural sections of Chapter 107 that were inadequate in application.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the amended and new sections are in effect, the public benefit anticipated as a result of enforcing the proposal will be to update and clarify the agency's procedural rules. The proposal provides clarification and consistency in the agency's procedural process and provides licensees and registrants with a better understanding of necessary procedural requirements. In addition, the proposal implements wording that more accurately reflects current statutory provisions and integrates applicable Administrative Procedure Act statutes, State Office of Administrative Hearing rules, and Texas Rules of Civil Procedure.
Ms. Meek has also determined that for each year of the first five years the amended and new sections are in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering the sections and no anticipated economic impact on individuals or small or micro-businesses required to comply with the rules as proposed.
Comments on the proposals may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that the sections are published in the Texas Register.
The amendments and new sections are proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§107.11.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Act--The Dental Practice Act (DPA), Texas Occupations Code Annotated §§251.001 et seq.
(2) Address of Record--A licensee's mailing address as provided to the State Board of Dental Examiners pursuant to state law and Board rule.
(3) Administrative Law Judge (ALJ)--An individual appointed to preside over administrative hearings pursuant to the APA.
(4) Administrative Procedure Act (APA)--Texas Government Code, Chapter 2001 as amended.
(5) [(1)] Agency--The Texas State
Board of Dental Examiners, also known as the State Board of Dental
Examiners, and, for brevity, the
Dental Board [dental board] or the
Board [board].
(6) Answer--A responsive pleading.
(7) [(2)] Applicant or petitioner--A
party seeking a license, registration, or certificate
from the agency [or a rule or interpretation from the agency
].
(8) [(3)] Board member--One of
the appointed members of the decision making body defined as the agency.
(9) [(4)] Certificate--Any annual
renewal authority or permit.
(10) Complaint--Written accusation made by any person, or by the Board on its own initiative, alleging that a licensee's conduct may have violated the DPA or the Board's rules.
(11) [(5)] Contested case--A
proceeding, including licensing, in which the legal rights, duties,
or privileges of a party are to be determined by the agency after
an opportunity for adjudicative hearing.
(12) Default Order--A Board Order in which the factual allegations against a party are deemed admitted as true upon the party's failure to file a timely Answer to a Formal Complaint or to appear at a properly noticed SOAH hearing.
(13) Default Proceeding--The issuance of a Proposal for Decision in which the factual allegations against the Respondent in a contested case are deemed admitted as true upon the Respondent's failure to appear at a properly noticed hearing or failure to file an Answer to the Formal Complaint.
(14) [(6)] Executive Director [
director]--The Executive Director [executive
director] of the Texas State Board of Dental Examiners.
(15) Formal Complaint--Pleading by Board staff publically alleging a violation of the Act, Board rules, or Board Order.
(16) [(7)] License--Includes
the whole or part of any agency permit, certificate, approval, registration,
or similar form of permission required by law.
(17) [(8)] Licensing--Includes
the agency process relating to the granting, denial, renewal, revocation,
cancellation, suspension, annulment, withdrawal, limitation, or amendment
of a license.
(18) [(9)] Officer--Any board
member elected to an office of the Texas State Board of Dental Examiners.
(19) [(10)] Party--Each person
named or admitted as a party.
(20) [(11)] Person--Any individual,
partnership, corporation, association, governmental subdivision, or
public or private organization of any character.
(21) Petitioner--A party, including the Board who brings a request or action and assumes the burden of going forward with an administrative proceeding; e.g., the Board in an action to discipline a licensee; the person who seeks a determination of eligibility for licensure.
(22) Proposal for Decision--A statement prepared by the individual who conducted the administrative hearing that provides the findings of fact and conclusions of law necessary for the proposed decision.
(23) [(12)] Register--The Texas Register.
(24) [(13)] Registration--The
required annual renewal of any previously issued permit or authority.
(25) Respondent--A party, including the Board, to whom a request is made or against whom an action is brought, e.g., the licensee in a disciplinary action by the Board; the Board in an action to determine eligibility for licensure.
(26) [(14)] Rule--Any agency
statement of general applicability that implements, interprets, or
prescribes law or policy, or describes the procedure or practice requirements
of the agency. The term includes the amendment or repeal of a prior
rule but does not include statements concerning only the internal
management or organization of the agency and not affecting private
rights or procedures. This definition includes substantive regulations.
(27) State Office of Administrative Hearings (SOAH)--A state agency created to serve as an independent forum for the conduct of adjudicative hearings in the executive branch of state government.
[(15) Administrative Law Judge (ALJ)--A
person who presides at an administrative hearing held before the State
Office of Administrative Hearings (SOAH).]
[(16) Petitioner--A party, including the board who brings a request or action and assumes the burden of going forward with an administrative proceeding; e.g., the board in an action to discipline a licensee; the person who seeks reinstatement of a license; the person who seeks a determination of eligibility for licensure.]
[(17) Respondent--A party, including the board, to whom a request is made or against whom an action is brought, e.g., the licensee in a disciplinary action by the board; the board in a reinstatement action; the board in an action to determine eligibility for licensure.]
§107.15.Computation of Time.
(a) Counting Days. Unless otherwise
required by statute, in computing time periods prescribed by this
chapter or by a State Office of Administrative Hearings (SOAH) order,
the period shall begin to run on the day after the act, event, or
default in question. The day of the act, event, or default on which
the designated period of time begins to run is not included in the
computation. The period shall conclude on the last day of the designated
period, unless that day is a day the agency is not open for business,
in which case the designated period runs until the end of the next
day on which the agency is open for business. When this chapter specifies
a deadline or a set number of days for filing documents or taking
other actions, the computation of time shall be calendar days rather
than business days, unless otherwise provided in this chapter or pursuant
to an order by an administrative law judge or Board Order. However,
if the period to act is five days or less, the intervening Saturdays,
Sundays, and legal holidays are not counted. [In computing
time periods prescribed by these rules, or by order of the agency,
the day of the act, event or default on which the designated period
of time begins to run is not included. The last day of the period
is included, unless it is a Saturday, Sunday or legal holiday, in
which case the time period will end on the next day that the agency
is open.]
(b) Extension. Unless otherwise provided by statute, the time for filing any document may be extended by agreement of the parties, order of the Executive Director or order of the administrative law judge (if SOAH has acquired jurisdiction), upon written request filed prior to the expiration of the applicable time period. The written request must show good cause for an extension of time and state that the need is not cause by the neglect, indifference, or lack of diligence of the movant.
§107.17.Service in Non-rulemaking Proceedings.
(a) Notification of Decisions and Orders.
When the agency is required to provide service of notice to any party
of a decision or order, the agency shall notify the party either personally
or by first class mail. Notice must be in writing and addressed to
the licensee at the licensee's address of record on file with the
Board at the time of the mailing or the licensee's attorney of record. [
Where service of notice by the agency is required, all parties shall
be notified either personally or by first class mail, to the last
known address, of any decision or order. If any party has appeared
by attorney or other representative, service shall be made upon such
attorney or representative.]
(b) Notification of Notice of Hearing. Notification of a Notice of Hearing shall be made to a licensee by hand delivery, regular, registered or certified mail, courier service, or otherwise in accordance with the APA and the Rules of SOAH. Notice must be in writing and addressed to the licensee at the licensee's address of record on file with the Board at the time of the mailing or addressed to the party's attorney of record. Notice of Hearing in a contested case must comply with Texas Government Code §2001.052. Service is complete when made pursuant to 1 TAC §155.103 (SOAH).
§107.21.Appearances Personally or by Representative.
A respondent [Any person] may appear
and be represented by the respondent's attorney of record who
is authorized to practice law in the State of Texas [an
attorney at law authorized to practice law before the highest court
of the State of Texas]. This right may be expressly waived.
Any respondent [person
] may appear on his own behalf
. A dental laboratory as defined by Chapter 266 of the
Texas Occupations Code shall be represented by the owner of record
or by the attorney of record of the owner of record. [,
or by a bona fide full-time employee. A corporation, partnership or
association may appear and be represented by any bona fide officer,
partner or full-time employee.]
§107.22.Pleading.
(a) In disciplinary matters, the Board's pleading shall be styled "Formal Complaint." Except in cases of temporary suspension, a Formal Complaint shall be filed only after notice of the facts or conduct alleged to warrant the intended action has been sent to the licensee's address of record and the licensee has an opportunity to show compliance with the law for retention of the license as provided in the Administrative Procedure Act (APA), Texas Government Code §2001.054(c).
(b) In non-disciplinary matters, the Board's pleading shall be styled "Petition of the State Board of Dental Examiners."
§107.23.Commencement of Formal Disciplinary Proceedings.
(a) If the Board has probable cause to believe that a violation of statute or Board rule occurred, Board staff may commence formal disciplinary proceedings by filing a public Formal Complaint against the Respondent.
(b) The Formal Complaint shall contain the following information:
(1) the name of the Respondent and his or her license, registration, or certificate number;
(2) a statement alleging with reasonable certainty the specific act or acts relied on by the Board to constitute a violation of a specific statute, Board rule, or Board Order; and
(3) a reference to the section of the Texas Occupations Code and the Board's rules which the Respondent is alleged to have violated.
(c) When a Formal Complaint is filed, the Executive Director shall serve the Respondent with a copy of the Formal Complaint. The Notice accompanying the Formal Complaint shall state that Respondent shall file a written answer to the Formal Complaint that meets the requirements of §107.24 of this title.
(d) Board staff may amend the Formal Complaint at any time permitted by the APA. A copy of any Amendment to the Formal Complaint shall be served on the Respondent. The first complaint filed shall be entitled "Formal Complaint," the first amended complaint filed shall be entitled "First Amended Formal Complaint," and so forth.
(e) The Formal Complaint may be resolved by agreement of the parties at any time.
§107.24.Respondent's Answer in a Disciplinary Matter.
(a) The Respondent in a disciplinary matter shall file an Answer to the Formal Complaint and to any Amendment to the Formal Complaint.
(b) The Answer shall admit or deny each of the allegations in the Formal Complaint or Amendment.
(c) If the Respondent fails to file an Answer to the Formal Complaint within twenty days of the date of service, the matter shall be considered a default case.
(d) In a case of default, the Respondent will be deemed to have
(1) admitted all the factual allegations in the Formal Complaint;
(2) waived the opportunity to show compliance with the law;
(3) waived the opportunity for a hearing on the Formal Complaint; and
(4) waived objection to the recommended sanction in the Formal Complaint.
(e) If the Respondent fails to file a written Answer within the time period prescribed by these rules, the Executive Director may recommend that the Board enter a Default Order based upon a Determination of Default.
(1) If no written Answer has been filed within twenty (20) days after the date of service, the Board attorney assigned to the matter may present the administrative record of the case, including the Formal Complaint, to the General Counsel for the Board. The General Counsel shall determine whether the Complaint was properly served.
(2) In the event the General Counsel determines that the Formal Complaint was properly served and that the Respondent has failed to timely file a written Answer, as required by subsection (a) of this section, the General Counsel shall issue a Determination of Default, which shall be served on the Respondent and filed at SOAH. The Determination of Default shall specifically state the facts on which the General Counsel has based the Determination of Default, and summarize the requirements by which a Determination of Default or Default Order may be set aside, as provided in paragraphs (4) - (7) of this subsection. When the Determination of Default is issued by the General Counsel, the Board Staff attorney shall file a motion with SOAH requesting that the matter be remanded to the Board to allow consideration of the Determination of Default, and serve the motion on the Respondent.
(3) An Answer received from the Respondent after a Determination of Default has been issued by the General Counsel shall not be filed.
(4) In the event that the Respondent wishes to file an Answer after a Determination of Default has been issued, but before a Default Order has been adopted by the Board, the Respondent must file a Motion to Set Aside the Determination of Default, which shall show the Board that:
(A) the failure to timely file a written Answer was not intentional or the result of conscious indifference but was due to a mistake or accident;
(B) the Respondent has a meritorious defense; and
(C) the setting aside of the Determination of Default will not cause any delay or injury to the Board.
(5) The Board shall consider the Formal Complaint, the Determination of Default, and any Motion to Set Aside the Determination of Default, at a meeting of the Board not less than twenty days after the date of the Determination of Default. If the Board concurs with the findings in the Determination of Default, the Board may deem the allegations in the Complaint as true and enter a Default Order.
(6) In the event that the Respondent wishes to file an Answer after a Default Order has been entered by the Board, but before the time for filing a Motion for Rehearing has expired, the Respondent must file a Motion for Rehearing to Set Aside Default Order, which shall show that:
(A) the failure to timely file a written Answer was caused by fraud, accident, or wrongful act or official mistake of the Board;
(B) the failure to timely file a written Answer was not the result of the Respondent's fault or negligence; and
(C) the Respondent has a meritorious defense.
(7) The Motion for Rehearing shall be supported by affidavits and documentary evidence that present a prima facie case for a meritorious defense.
(f) Upon consideration of the case, the Board may:
(1) enter a default order under §2001.056 of the APA; or
(2) order the matter to be set for a hearing at SOAH.
(g) The Respondent may amend his or her Answer at any time permitted by the APA or SOAH rules.
(h) The first answer filed shall be entitled "Answer," the first amended answer filed shall be entitled "First Amended Answer," and so forth.
(i) Any default judgment granted under this section will be entered on the basis of the factual allegations in the Formal Complaint contained in the Notice, and upon proof of proper notice to the Respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §2001.054 and §107.17 of this title. Such notice shall also include the following language in capital letters in 12 point boldface type: FAILURE TO FILE A WRITTEN ANSWER TO THE FORMAL COMPLAINT, EITHER PERSONALLY OR BY LEGAL REPRESENTATIVE, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL COMPLAINT BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
(j) A Motion for Rehearing which requests that the Board vacate its Default Order under this section shall be granted if the movant proves by the preponderance of the evidence that the failure to answer the Formal Complaint was not intentional or the result of conscious indifference, but due to accident or mistake--provided that the movant has a meritorious defense to the factual allegations contained in the Formal Complaint and vacating the Default Order will occasion no delay or otherwise work an injury to the Board.
§107.25.Formal Proceedings.
(a) Formal administrative hearings in contested cases shall be conducted in accordance with the APA, SOAH rules, the Texas Occupations Code, and Board rules. SOAH acquires jurisdiction over the case when the Board staff files a Request to Docket Case Form accompanied by legible copies of all pertinent documents including, but not limited to, the Formal Complaint, petition, application, or other document describing the agency action giving rise to a contested case.
(b) When a case has been docketed before SOAH, Board staff shall provide a Notice of Hearing to all parties in accordance with §2001.052, Texas Government Code, and applicable SOAH rules.
(c) In disciplinary cases, the Respondent shall enter an appearance by filing a written Answer or other responsive pleading with SOAH and provide a copy to Board staff, within twenty (20) days of the date on which the Notice of Hearing is served to the Respondent. For purposes of this section, an entry of an appearance shall mean the filing of a written Answer or other responsive pleading.
(d) The failure of the Respondent to timely enter an appearance as provided in this section shall entitle the Board staff to a continuance at the time of the hearing in the contested case for such reasonable period of time as determined by the ALJ.
(e) The Notice of Hearing provided to a Respondent for a contested case shall include the following language in capital letters in 12-point boldface type: FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE THIS NOTICE WAS MAILED, SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF THE HEARING.
(f) If a Respondent fails to appear in person or by attorney on the day and at the time set for hearing in a contested case, regardless of whether an appearance has been entered, the ALJ, pursuant to SOAH's rules, shall, upon adequate proof that proper notice under the APA and SOAH rules was served upon the defaulting party, enter a default judgment in the matter adverse to the Respondent. Such notice shall have included in 12-point, boldface type, the fact that upon failure of the party to appear at the hearing, the factual allegations in the notice will be deemed admitted as true and the relief sought in the proposed recommendation by the staff shall be granted by default.
(g) Any default judgment granted under this section will be entered on the basis of the factual allegations in the Formal Complaint contained in the Notice of Hearing, and upon proof of proper notice to the Respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §§2001.051, 2001.052, and 2001.054, as well as §107.17 of this title. Such Notice of Hearing also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING IN PERSON OR BY LEGAL REPRESENTATIVE, REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL COMPLAINT BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
(h) A Motion to Vacate the Default Judgment rendered by the ALJ must be filed within ten (10) days of service of Notice of the Default Judgment.
(1) The Motion to Vacate the Default Judgment shall be granted if movant proves by the preponderance of the evidence that the failure to attend the hearing was not intentional or the result of conscious indifference, but due to accident or mistake, provided that the Respondent has a meritorious defense to the factual allegations contained in the Formal Complaint and granting the motion will occasion no delay or otherwise work an injury to the Board.
(2) If the Motion to Vacate the Default Judgment is granted, it shall be the responsibility of the parties to either settle the matter informally or to request a rehearing on the merits. Whenever possible, the rehearing of the case shall occur with the ALJ that heard the default matter.
(i) Because of the often voluminous nature of the records properly received into evidence by the ALJ, the party introducing such documentary evidence may paginate each such exhibit or flag pertinent pages in each such exhibit in order to expedite the hearing and the decision-making process.
(j) Within the time line set out in the SOAH rules, after the conclusion of the hearing the ALJ shall prepare and serve on the parties a Proposal for Decision that includes the ALJ's findings of fact and conclusions of law.
(k) Each hearing may be recorded by a court reporter in accordance with the APA and SOAH rules. The cost of the transcription of the statement of facts shall be borne by the party requesting the transcript and said request shall be sent directly to the court reporter and the requesting party shall notify the other party in writing of the request.
§107.47.Depositions.
(a) The deposition of any witness may be taken upon a commission issued by the executive director upon the written request of any party, a copy of which shall be served on the non-requesting party.
(b) The written request shall contain the name, address, and title, if any, of the witness; a description of the books, records, writings, or other tangible items the requesting party wishes the witness to produce at the deposition; the date and location where the requesting party wishes the deposition to be taken; and a statement of the reasons why the deposition should be taken and the items produced.
(c) Depositions may be taken by telephone and by non-stenographic recording. The recording or transcript may be used by any party to the same extent as a stenographic deposition, provided all other parties are supplied with a copy of the recording and the transcript to be used. The witness in a telephonic or non-stenographic deposition may be sworn by any notary. The transcript of such deposition shall be submitted to the witness for signature in accordance with Texas Government Code Annotated §2001.099.
(d) Not withstanding any other provisions of these sections, the executive director may issue a commission to take a deposition prior to the filing of a formal complaint if, in the opinion of the executive director, such a commission is necessary for either party to preserve evidence and testimony or to investigate any potential violation or lack of compliance with the Act, the rules and regulations, or orders of the Board. The commission may be to compel the attendance of any person to appear for the purposes of giving sworn testimony and to compel the production of books, records, papers or other objects.
(e) A deposition in a contested case shall be taken in the county where the witness:
(1) resides;
(2) is employed; or
(3) regularly transacts business in person.
(f) Cost of Expert Witnesses. When a party takes the oral deposition of an expert witness retained by the opposing party, all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition must be paid by the party that retained the expert.
§107.48.Subpoenas.
(a) Investigative Subpoenas. Pursuant the Dental Practice Act, the Board has the authority to issue subpoenas to compel the attendance of witnesses and to issue subpoenas duces tecum to compel the production of books, records, or documents. The pendency of a SOAH proceeding does not preclude the Board from issuing an investigative subpoena at any time.
(b) SOAH Subpoenas. Subsequent to the filing of a formal Complaint, any party may request in writing that the Executive Director issue a subpoena or subpoena duces tecum in accordance with §2001.089 of the APA upon a showing of good cause.
(1) The party requesting the subpoena shall be responsible for the payment of any expense incurred in serving the subpoena, as well as reasonable and necessary expenses incurred by the witness who appears in response to the subpoena.
(2) If the subpoena is for the attendance of a witness, the written request shall contain the name, address, and title, if any, of the witness and the date and location at which the attendance of the witness is sought.
(3) If the subpoena is for the production of books, records, writings, or other tangible items, the written request shall contain a description of the item sought; the name, address, and title, if any, of the person or entity who has custody or control over the items and the date; and the location at which the items are sought to be produced.
(4) The party requesting a subpoena duces tecum shall describe and recite with clarity, specificity, and particularity the books, records, documents to be produced.
(c) Service and expenses.
(1) A subpoena issued at the request of the board's staff may be served either by a board investigator or by certified mail in accordance with the Dental Practice Act Section 263.008. The board shall pay reasonable charges for photocopies produced in response to a subpoena requested by the board's staff, but such charges may not exceed those billed by the board for producing copies of its own records.
(2) A subpoena issued at the request of any party other than the board shall be addressed to a sheriff or constable for service in accordance with the APA §2001.089.
(d) Fees and travel. A witness called at the request of the Board shall be compensated and reimbursed for travel in accordance with this title. An expert witness called at the request of the Board shall be paid a compensation fee as set by agency policy and reimbursed for travel in accordance with this title.
(e) Additional reasons for granting a subpoena. Notwithstanding any other provisions of this section, the executive director may issue a subpoena if, in the opinion of the Executive Director, such a subpoena is necessary to preserve evidence and testimony regarding any potential violation or lack of compliance with the Dental Practice Act, the rules and regulations, or orders of the Board.
[(a) A witness or deponent in a contested
case who is not a party and who is subpoenaed or otherwise compelled
to attend a hearing or proceeding to testify or give a deposition
or to produce books, records, papers, or other objects that may be
necessary and proper for the purpose of a proceeding at the State
Office of Administrative Hearing (SOAH) is entitled to receive:]
[(1) $.18 for each mile, or a greater amount prescribed by state agency rules, for going to and returning from the place of the hearing or deposition if the place is more than 25 miles from the person's place of residence and the person uses the person's personally owned or leased motor vehicle for the travel;]
[(2) Reimbursement of the transportation expenses of the witness or deponent for going to and returning from the place where the hearing is held or the deposition is taken, if the place is more than 25 miles from the person's place of residence and the person does not use the person's personally owned or leased motor vehicle for the travel;]
[(3) Reimbursement of the meal and lodging expenses of the witness or deponent while going to and returning from the place where the hearing is held or deposition taken, if the place is more than 25 miles from the person's place of residence;]
[(4) $25, or a greater amount prescribed by state agency rule, for each day or part of a day that the person is necessarily present.]
[(b) A subpoena or commission requiring deposition shall be issued only after deposit with the agency of an amount sufficient to ensure payment of the expenses incident to the subpoena, the attendance of witnesses or deponents, or both.]
(f) [(c)] Requests for issuance
of subpoenas or commissions requiring deposition. Requests for
issuance of subpoenas or commissions requiring deposition shall be
directed to the agency not later than the tenth day before the date
the witness or deponent is required to appear. The parties may agree
to modify the time period prescribed by this section.
§107.50.Filing of Exceptions, Briefs, and Replies.
Exceptions shall be filed within fifteen (15) days after
the date of service of the Proposal for Decision. A reply to the exceptions
shall be filed within fifteen (15) days of the filing of the exceptions.
All SOAH rules regarding exceptions and replies shall govern this
section. [Any party of record may, within 20 days after
the date of service of a proposal for decision, file exceptions and
briefs to the proposal for decision, and replies to such exceptions
and briefs may be filed within 15 days after the date for filing of
such exceptions and briefs. A request for extension of time within
which to file exceptions, briefs, or replies shall be filed with the
executive director, and a copy thereof shall be served on all other
parties of record by the party making such request. The executive
director shall promptly notify the parties of his action upon the
same and shall allow additional time only in extraordinary circumstances
where the interest of justice so require.]
§107.54.Administrative Finality.
(a) A decision in a contested case is final:
(1) if a motion for rehearing is not filed on time, on the expiration of the period for filing a motion for rehearing;
(2) if a motion for rehearing is filed on time, on the date:
(A) the order overruling the motion for rehearing is rendered; or
(B) the motion is overruled by operation of law.
(3) if the agency finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a decision or order, on the date the decision is rendered, or;
(4) on the date specified in the order for a case in which all parties agree to the specified date in writing or on the record, if the specified date is not before the date the order is signed or later than the 20th day after the date the order was rendered.
(b) If a decision or order is final under subsection
(a)(3)[(4)
] of this section, the agency must
recite in the decision or order the finding made under subsection
(a)(3)[(4)
] of this section and the fact that
the decision is final and effective on the date rendered.
§107.55.Motions for Rehearing.
(a) A timely motion for rehearing is a prerequisite to an appeal in a contested case, except that a motion for rehearing of a decision or order that is final under §107.54(a)(3) or (4) of this title (relating to Administrative Finality), is not a prerequisite to an appeal.
(b) A decision that is final under §107.54(a)(2), (3), or (4) of this title (relating to Administrative Finality) is appealable.
§107.63.Informal Disposition and Alternative Dispute Resolution.
(a) (No change.)
(b) Approval. The Board Secretary or Executive
Director [executive director] shall determine if
the public interest would be served by offering to resolve a complaint
or other matter pending before the Board by either informal disposition
as described in Chapter 2001 et[.] seq., of the Government
Code, or by a method of alternative dispute resolution under Chapter
2009 of the Government Code, in lieu of a formal disciplinary proceeding
described in the Occupations Code[,] §263.003.
(c) Informal Disposition. Pursuant to Texas [the
] Government Code, Chapter 2001 et[.] seq., ultimate
disposition of any complaint or matter pending before the Board may
be made by stipulation, agreed settlement, or consent order. Under
Texas [the] Occupations Code[,] §263.007
and §263.0075, such a disposition may be reached through review
at an informal settlement conference, which may take the form of a
staff settlement conference or a Board settlement conference.
(1) Board Settlement Conference.
(A) The Board Secretary or Executive Director [executive director
] may approve a matter for review at a Board settlement conference.
(B) One or more members of the Board shall represent the full Board at the Board settlement conference.
(C) The Board will provide the licensee notice in writing
of the time, date, and place of the settlement conference. Such notification
shall inform the licensee: of the nature of the alleged violation;
that he or she may be represented by legal counsel; that the licensee
may offer the testimony of such witnesses as he or she may desire;
that the Board will be represented by one or more of its members and
by legal counsel; and that he or she may request that the matter be
considered by the Board according to procedures described in
Texas Occupations Code, §263.007. The [
A copy of the] Board's rules or policies
relating to the informal disposition
of cases shall be enclosed with the notice of the settlement conference.
Notice of the settlement conference, with enclosures, shall be sent
by first class United States Mail [certified mail,
return receipt requested,] to the address of record
[current address
] of the licensee on file with the Board or
the licensee's attorney of record.
(D) The settlement conference shall be informal and
will not follow the procedure established in State Office of Administrative
Hearing (SOAH) rules for contested cases. The licensee, his or her
attorney, [and] representative(s) of the Board
, and Board staff may question witnesses, make relevant statements, present
affidavits or statements of persons not in attendance, and may present
such other evidence as may be appropriate. Any documentary evidence
received by the Board less than 10 days before the scheduled dates
of the settlement conference may [will] not
be considered by the panel.
(E) The settlement conference will be conducted by a representative(s) of the Board. The Board's representative may call upon the Board's attorney at any time for assistance in conducting the settlement conference. The Board's representative(s) may question any witness, and shall afford each participant in the settlement conference the opportunity to make such statements as are material and relevant.
(F) The Board's representative(s) may prohibit or limit access to the Board's investigative file by the licensee, his or her attorney, and the complainant and his or her representative.
(G) The Board's representative(s) shall exclude from
the settlement conference all persons except
the patient or other witnesses; [
during their testimony,] the licensee
and[,] his or her attorney
;[,] the complainant
;[,] Board members
;[,] and
Board [board] staff.
(H) At the conclusion of the settlement conference,
the Board's representative(s) shall make recommendations [
to the licensee and consultant
] for resolution or correction of
any alleged violations of the Dental Practice Act or of the Board
rules. Such recommendations may include any disciplinary actions authorized
by Texas [the] Occupations Code[,
] §263.002. The Board's representative(s) may, on the basis that a violation of
the Dental Practice Act or the Board's rules has not been established,
either close the case, or refer the case to Board staff for further
investigation. Closure of a case by the Board's representative(s)
shall be given effect immediately without the necessity of presentation
to the full Board.
(I) Board staff shall draft a proposed settlement agreement
reflecting the settlement recommendations, which the licensee shall
either accept or reject. To accept the settlement recommendations,
the licensee must sign the proposed agreed settlement order and return
it to the Board [within 30 days from receipt]. Inaction
by the licensee shall constitute rejection. If the licensee rejects
the proposed agreed settlement order, the matter shall be referred
to the Board Secretary and Executive Director [executive
director] for other appropriate disposition.
(J) Following acceptance and execution of the proposed
agreed settlement order by the licensee, said proposed order shall
be submitted to the Board's legal counsel, and/or
Executive Director [executive director] for review.
(K) The settlement proposal will then be submitted to the entire Board for approval.
(L) A recommendation to close a case requires no further action by the Respondent.
(2) Staff Settlement Conference.
(A) The Board Secretary or Executive Director [
executive director] may approve a matter for review at a staff
settlement conference.
(B) Staff settlement conferences shall be held by a panel of board employees consisting, at a minimum, of an attorney of the Board, and either the investigator responsible for the case or the Director of Enforcement. A Board member who is able to advise on standard of care issues must participate in any case involving such issues.
(C) The Board will provide the licensee notice in writing of the time, date, and place of the settlement conference. Such notification shall inform the licensee: of the nature of the alleged violation; that he or she may be represented by legal counsel; that the licensee may offer the testimony of such witnesses as he or she may desire; that the Board will be represented by one or more of its members and by legal counsel; and that he or she may request that the matter be considered by the Board according to procedures described in Texas Occupations Code §263.007. The Board's rules or policies relating to the informal disposition of cases shall be enclosed with the notice of the settlement conference. Notice of the settlement conference, with enclosures, shall be sent by first class United States Mail to the address of record of the licensee on file with the Board or the licensee's attorney of record.
(D) The settlement conference shall be informal and will not follow the procedure established in State Office of Administrative Hearing (SOAH) rules for contested cases. The licensee, his or her attorney, representative(s) of the Board, and Board staff may question witnesses, make relevant statements, present affidavits or statements of persons not in attendance, and may present such other evidence as may be appropriate. Any documentary evidence received by the Board less than 10 days before the scheduled dates of the settlement conference may not be considered by the panel.
(E) The settlement conference will be conducted by a representative(s) of the Board. The Board's representative may call upon the Board's attorney at any time for assistance in conducting the settlement conference. The Board's representative(s) may question any witness, and shall afford each participant in the settlement conference the opportunity to make such statements as are material and relevant.
(F) The Board's representative(s) may prohibit or limit access to the Board's investigative file by the licensee, his or her attorney, and the complainant and his or her representative.
(G) The Board's representative(s) shall exclude from the settlement conference all persons except patients and other witnesses during their testimony, the licensee, his or her attorney, the complainant, Board members, and Board staff.
(H) [(C)] At the conclusion of
the staff settlement conference, the panel shall make recommendations
for resolution or correction of any alleged violations of the Dental
Practice Act or of the Board rules. Such recommendations may include
any disciplinary actions authorized by
Texas [the]
Occupations Code[,] §263.002. The panel may, on the
basis that a violation of the Dental Practice Act or the Board's rules
has not been established, either close the case, or refer the case
to Board staff for further investigation. Closure of a case by a staff
settlement conference shall be given effect immediately without the
necessity of presentation to the full Board.
(I) [(D)] Board staff shall draft
a proposed settlement agreement reflecting the settlement recommendations,
which the licensee shall either accept or reject. To accept the settlement
recommendations, the licensee must sign a proposed settlement agreement
and return it to the Board [within 30 days from receipt].
Inaction by the licensee shall constitute rejection. If the licensee
rejects the proposed agreed settlement order, the matter shall be
referred to the Board Secretary and Executive Director [
executive director] for other appropriate disposition.
(J) [(E)] Following acceptance
and execution of the proposed agreed settlement order by the licensee,
said proposed order shall be submitted to the Board's legal counsel,
and/or executive director for review.
(K) [(F)] A recommendation to
close a case requires no further action by the Respondent.
(d) Alternative Dispute Resolution (ADR).
(1) Any ADR procedure used to resolve an internal or external dispute before the Board shall comply with the requirements of Chapter 2009, Texas Government Code, and shall, to the extent possible, comply with any model guidelines issued by the State Office of Administrative Hearings for the use of ADR by state agencies.
(2) Use of ADR In Contested Disciplinary Matters.
(A) The Board Secretary or the Executive Director [
executive director] may refer a contested disciplinary matter
to an ADR process to seek resolution or correction of any alleged
violations of the Dental Practice Act or of the Board rules. Such
ADR processes may include:
(i) any procedure described by Chapter 154, Texas Civil Practice and Remedies Code; or,
(ii) a combination of the procedures described by Chapter 154, Texas Civil Practice and Remedies Code.
(B) Any agreement or recommendation resulting from
the application of an ADR process to a contested disciplinary matter
shall be documented in written form and signed by the licensee, and
legal counsel for the Board and/or the executive director or Board
Secretary. Such an agreement or recommendation may include any disciplinary
actions authorized by Texas [the] Occupations
Code[,] §263.002.
(C) If the ADR process results in no agreement or recommendation, the matter shall be referred to the Board Secretary and executive director for other appropriate disposition.
(e) Consideration by the Board.
(1) All proposed agreed settlement orders, agreements or other recommendations shall be reviewed by the full Board for approval.
(2) Upon an affirmative majority vote, the Board shall enter an order approving the proposed agreed settlement order, agreement, or recommendation. Said order shall bear the signature of the Presiding Officer and Board Secretary, or of the officer presiding at such meeting and shall be included in the minutes of the Board.
(3) If the Board does not approve a proposed settlement order, agreement, or recommendation, the licensee shall be so informed. The matter shall be referred by the Board to the Board Secretary and Executive Director for consideration of appropriate action.
(f) Restitution.
(1) Pursuant to Texas [the] Occupations
Code[,] §263.0075, the Board [board]
may order a licensee to pay restitution to a patient as provided in
a proposed agreed settlement order or other agreement or recommendation,
instead of or in addition to any administrative penalty.
(2) The amount of restitution ordered may not exceed
the amount the patient paid to the licensee for the service or services
from which the complaint arose. The Board [board]
shall not require payment of other damages or make an estimation of
harm in any order for restitution.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 7, 2010.
TRD-201002481
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes amendments to §107.59, relating to ex parte consultations. The amendments were suggested by staff and update the section to reflect current law.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of enforcing the proposal will be clarification and accuracy as the amendments implement wording that more accurately reflects current statutory provisions of the Texas Government Code.
Ms. Meek has also determined that for each year of the first five years the amended section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rules as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The amendment is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§107.59.Ex Parte Consultations.
(a) Unless required for the disposition
of ex parte matters authorized by law,
Board members or Board employees [
of an agency] assigned to render a decision
or to make findings of fact and conclusions of law in a contested
case may not communicate, directly or indirectly, in connection with
any issue of fact or law with any party or his representative, except
on notice and opportunity for all parties to participate.
(b) A Board member or Board employee may communicate ex parte with another Board member or Board employee unless prohibited by other law.
(c) Under the APA, Texas Government Code §2001.090, a Board member or Board employee assigned to render a decision or make findings of fact and conclusions of law in a contested case may communicate ex parte with a Board employee who has not participated in a hearing in the case for the purpose of using the special skills or knowledge of the agency and its staff in evaluating the evidence.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002482
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes an amendment to §107.102, relating to procedures for investigating complaints. The amendment was suggested by staff and aligns the wording of the rule with agency process and statutory requirements.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing the proposal will be clarification, efficiency, and consistency in the agency's investigation process and a more accurate reflection of current statutory provisions in the language of the section.
Ms. Meek has also determined that for each year of the first five years the amended section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rules as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The amendment is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§107.102.Procedures for Investigating Complaints.
(a) - (d) (No change.)
(e) The person who filed the complaint and each
licensee or registrant who is a subject of the complaint [The
parties to the complaint] shall receive notice of the complaint's
status, at least quarterly, until final disposition of the complaint,
unless such notice would jeopardize an investigation.
(f) - (g) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002483
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes new §107.203, relating to aggravating and mitigating factors. The new section was suggested by staff and formalizes the process under which aggravating and mitigating factors are considered when the Board considers formal disciplinary action against a licensee or registrant.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of enforcing the proposal will be clarification, efficiency, and consistency in the agency's complaint resolution process. The section will also provide licensees and registrants with a better understanding of the process.
Ms. Meek has also determined that for each year of the first five years the new section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rules as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The new rule is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The proposal affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§107.203.Aggravating and Mitigating Factors.
(a) Aggravating Factors. In any disciplinary action, the following may be considered as aggravating factors that warrant more severe or restrictive action by the Board. A Board Order may include a finding of fact on each applicable aggravating factor. Aggravating factors may include:
(1) harm to one or more patients;
(2) the severity of patient harm;
(3) one or more violations that involve more than one patient;
(4) economic harm to any individual or entity and the severity of such harm;
(5) increased potential for harm to the public;
(6) attempted concealment of the act constituting a violation;
(7) intentional, premeditated, knowing, or grossly negligent act constituting a violation;
(8) prior similar violations;
(9) previous disciplinary action by the Board, any government agency, peer review organization, or health care entity;
(10) violation of a Board Order; or
(11) other relevant circumstances increasing the seriousness of the misconduct.
(b) Mitigating Factors. In any disciplinary action, the following may be considered as mitigating factors that warrant less severe or restrictive action by the Board. The licensee shall have the burden to present evidence regarding any mitigating factors that may apply in the particular case. A Board Order may include a finding of fact on each applicable mitigating factor:
(1) self-reported and voluntary admissions of violation(s);
(2) implementation of remedial measures to correct or mitigate harm from the violation(s);
(3) acknowledgment of wrongdoing and willingness to cooperate with the Board, as evidenced by acceptance of an Agreed Order;
(4) rehabilitative potential;
(5) prior community service and present value to the community;
(6) other relevant circumstances reducing the seriousness of the misconduct; or
(7) other relevant circumstances lessening responsibility for the misconduct.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002484
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
The State Board of Dental Examiners (Board or SBDE) proposes amendments to §108.7, relating to the minimum standard of care in the practice of dentistry; §108.8, relating to records of the dentist; and §108.9, relating to dishonorable conduct. The amendments were suggested by staff to clarify provisions relating to standard of care, records of the dentist, and dishonorable conduct.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the amended sections are in effect, the public benefit anticipated as a result of enforcing the proposals will be that licensees will have a better understanding of these professional requirements. Amendments to §108.7 provide an expanded, though not exhaustive, list of standard of care violations. Amendments to §108.8 clarify requirements regarding records transfer agreements and records maintenance agreements. The amendments also specifically require dentists to provide diagnostic quality x-rays and legible records in response to requests from patients and the SBDE. The amendments do not substantively change the records requirements for dentists, but integrate language that better reflects current interpretation of the section. Amendments to §108.9 implement wording that reflect current statutory provisions.
Ms. Meek has also determined that for each year of the first five years the amended sections are in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering these sections. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rules as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that these sections are published in the Texas Register.
The amendments are proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The amendments affect Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§108.7.Minimum Standard of Care, General.
Each dentist licensed by the State Board of Dental Examiners and practicing in Texas shall conduct his/her practice in a manner consistent with that of a reasonable and prudent dentist under the same or similar circumstance. Further, each dentist:
(1) - (6) (No change.)
(7) Shall safeguard patients against avoidable infections as required by this chapter.
(8) Shall not be negligent in the provision of dental services.
(9) Shall use proper diligence in the dentist's practice.
(10) Shall maintain a centralized inventory of drugs.
(11) Shall report patient death or hospitalization as required by this chapter.
(12) Shall abide by sanitation requirements as required by this chapter.
(13) Shall abide by patient termination requirements as required by this chapter.
§108.8.Records of the Dentist.
(a) - (c) (No change.)
(d) Dental records are the sole property of the dentist
who performs the dental service. However, ownership of original
dental records may be transferred as provided in this section. Copies
of dental records shall be made available to a dental patient in accordance
with this section. [Such records shall be available for
inspection by the patient after and upon appointment with a dentist.
This shall not prohibit the transfer of a copy of records to the patient,
or to an agreed designated consultant for ascertainment of facts,
nor transfer of original records to another Texas dental licensee
who will provide treatment to the patient. The transferring dentist
shall retain a copy of the written record if such original transfer
is made.]
(e) A dentist who leaves a location or practice, whether
by retirement, sale, transfer, termination of employment or otherwise,
shall [either] maintain all dental records belonging to
him or her, make a written transfer of records to the succeeding dentist,
or make a written agreement for the maintenance of records
.[, and the State Board of Dental Examiners shall be notified within
15 days of any such event, giving full information concerning the
dentists and location(s) involved. A maintenance of records agreement
shall not transfer ownership of the dental records, but shall require:
that the dental records be maintained in accordance with the laws
of the State of Texas and the Rules of the State Board of Dental Examiners;
and that the dentist(s) performing the service(s) recorded shall have
access to and control of the records for purposes of inspection and
copying. A transfer of records may be made by agreement at any time
in an employment or other working relationship between a dentist and
another entity. Such transfer of records may apply to all or any part
of the dental records generated in the course of the relationship,
including future dental records.]
(1) A dentist who continues to maintain the dental records belonging to him or her shall personally maintain the dental records in accordance with the laws of the State of Texas and this chapter.
(2) A dentist who enters into a written transfer of records agreement shall notify the State Board of Dental Examiners in writing within fifteen (15) days of a records transfer agreement. The notification shall include, at a minimum, the full names of the dentists involved in the agreement, include the locations involved in the agreement, and specifically identify what records are involved in the agreement. The agreement shall transfer ownership of the records. A transfer of records agreement may be made by agreement at any time in an employment or other working relationship between a dentist and another entity. Such transfer of records may apply to all or any part of the dental records generated in the course of the relationship, including future dental records.
(3) A dentist who enters into a records maintenance agreement shall notify the State Board of Dental Examiners within fifteen (15) days of such event. The notification shall include the full names of the dentists involved in the agreement, the locations involved in the agreement, and shall identify what records are involved in the agreement. A maintenance agreement shall not transfer ownership of the dental records, but shall require that the dental records be maintained in accordance with the laws of the State of Texas and the Rules of the State Board of Dental Examiners. The agreement shall require that the dentist(s) performing the dental service(s) recorded in the records have access to and control of the records for purposes of copying and recording. The dentist transferring the records in a records maintenance agreement shall maintain a copy of the records involved in the records maintenance agreement. Such an agreement may be made by written agreement by the parties at any time in an employment or other working relationship between a dentist and another entity. A records maintenance agreement may apply to all or any part of the dental records generated in the course of the relationship, including future dental records.
(f) Dental records shall be made available for inspection and reproduction on demand by the officers, agents, or employees of the State Board of Dental Examiners. The patient's privilege against disclosure does not apply to the Board in a disciplinary investigation or proceeding under the Dental Practice Act. Copies of dental records submitted to the Board on demand of the officers, agents, or employees of the Board shall be legible and all copies of dental x-rays shall be of diagnostic quality. Non-diagnostic quality copies of dental x-rays and illegible copies of patient records submitted to the Board shall not fulfill the requirements of this section.
(g) A dentist shall furnish copies of dental records
to a patient who requests his or her dental records. At the patient's
option, the copies may be submitted to the patient directly or to
another Texas dental licensee who will provide treatment to the patient.
Requested copies, including radiographs, shall be furnished
within 30 days of the date of the request. The copies may be
withheld until copying costs have been paid. Records shall not be
[, provided however, that copies need not be released until payment
of copying costs has been made. Records may not be] withheld
based on a past due account for dental care or treatment previously
rendered to the patient. Copies of dental records submitted in
accordance with a request under this section shall be legible and
all copies of dental x-rays shall be of diagnostic quality. Non-diagnostic
quality copies of dental x-rays shall not fulfill the requirements
of this section.
(1) - (4) (No change.)
§108.9.Dishonorable Conduct.
The dishonorable conduct section is intended to protect
the public from dangerous, unethical, and illegal conduct of licensees.
The purpose of this section is to identify unprofessional or dishonorable
behaviors of a licensee which the Board believes are likely to pose
a threat to the public. Actual injury to a patient need not be established
for a licensee to be in violation of this section. Behavior constituting
dishonorable conduct includes, but is not limited to [A
licensee is in violation of this rule if he or she]:
(1) Criminal conduct--including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.
[(1) Aids or abets in the violation
of a criminal statute or participates in a conspiracy to procure (by
corruption, fraud, misrepresentation, or bribery, or both) a dental
license for an unqualified person.]
(2) Deception or misrepresentation--engages in deception or misrepresentation:
(A) in soliciting or obtaining patronage; or
(B) in obtaining a fee.
(3) Fraud in obtaining a license--obtains a license by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.
(4) Misconduct involving drugs or alcohol--actions or conduct that include, but are not limited to:
(A) [(2)] providing [Provides
] dental services to a patient while the licensee is
impaired through the use of drugs, narcotics, or alcohol
;[.]
(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs;
(C) improperly obtained, possessed, or used habit-forming drugs or narcotics including self-prescription of drugs;
(D) [(3)] grossly [Grossly
] over prescribes, dispenses, or administers narcotic drugs,
dangerous drugs, or controlled substances;[.]
(E) [(4)] prescribes [Prescribes
], dispenses, or administers narcotic drugs, dangerous
drugs, or controlled substances to or for a person who is not his
or her dental patient;[,] or [not for a
dental purpose.]
(F) prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to a person for a non-dental purpose, whether or not the person is a dental patient.
(5) Assisting another in engaging in the unauthorized practice of dentistry or dental hygiene--holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist's control or management.
(6) Failure to comply with applicable laws, rules, regulations, and orders--violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.
(7) Inability to practice safely--is physically or mentally incapable of practicing in a manner that is safe for the person's dental patients.
(8) Discipline of a licensee by another state board--holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:
(A) reprimands the person;
(B) suspends or revokes the person's license or certificate or places the person on probation; or
(C) imposes another restriction on the person's practice.
(9) Failure to comply with Medicaid, insurance, or other regulatory laws--knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:
(A) regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or
(B) regulates the business of insurance.
(10) Improper delegation--improperly delegates any task to any individual who is not permitted to perform the task by law, this chapter, or practice restrictions imposed by Board Order.
[(5) Indicates a fee for dental services
on an insurance or other third party reimbursement claim form which
is other than the fee which the dentist expects to collect for services
rendered.]
(11) [(6)] Unprofessional
conduct engages--[Engages] in conduct that has become
established through professional experience as likely to disgrace,
degrade, or bring discredit upon the licensee or the dental profession.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002485
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes new §114.10, relating to dishonorable conduct. The new section was suggested by staff to clearly delineate the professional conduct requirements of dental assistants.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of enforcing the proposal will be that dental assistants will have a better understanding of their professional responsibility requirements.
Ms. Meek has also determined that for each year of the first five years the new section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rule as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The new section is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The new section affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§114.10.Dishonorable Conduct.
The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees and registrants. The purpose of this section is to identify unprofessional or dishonorable behaviors of a dental assistant which the Board believes are likely to pose a threat to the public. Actual injury to a patient need not be established for a dental assistant to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to:
(1) Criminal conduct--including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.
(2) Deception or misrepresentation--engages in deception or misrepresentation:
(A) in soliciting or obtaining patronage; or
(B) in obtaining a fee.
(3) Fraud in obtaining a license, registration, or certification--obtains a registration or certification by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.
(4) Misconduct involving drugs or alcohol--actions or conduct that include, but are not limited to:
(A) providing dental services to a patient while the dental assistant is impaired through the use of drugs, narcotics, or alcohol;
(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs; or
(C) improperly obtained, possessed, or used habit-forming drugs or narcotics.
(5) Failure to comply with applicable laws, rules, regulations, and orders--violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.
(6) Inability to practice safely--is physically or mentally incapable of practicing in a manner that is safe for the person's dental patients.
(7) Discipline of a licensee by another state board--holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:
(A) reprimands the person;
(B) suspends or revokes the person's license or certificate or places the person on probation; or
(C) imposes another restriction on the person's practice.
(8) Unprofessional conduct--engages in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002486
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
The State Board of Dental Examiners (Board) proposes new §115.9, relating to dishonorable conduct. The new section was suggested by staff to clearly delineate the professional conduct requirements of dental hygienists.
Ms. Sherri Sanders Meek, Executive Director, has determined that for each year of the first five years the new section is in effect, the public benefit anticipated as a result of enforcing the proposal will be that licensees will have a better understanding of their professional responsibility requirements.
Ms. Meek has also determined that for each year of the first five years the new section is in effect, there will be no fiscal implications for local or state government as a result of enforcing or administering this section. There is no anticipated economic impact on individuals or small or micro-businesses required to comply with the rule as proposed.
Comments on the proposal may be submitted to Carey A. Olney, staff attorney, State Board of Dental Examiners, 333 Guadalupe Street, Tower 3, Suite 800, Austin, Texas 78701 (by mail), (512) 463-7452 (by fax), or carey.olney@tsbde.state.tx.us (by email). To be considered, comments must be in writing and received by the State Board of Dental Examiners no later than 30 days from the date that this section is published in the Texas Register.
The new section is proposed under Texas Occupations Code §254.001, which provides the Board with the authority to adopt and enforce rules necessary for it to perform its duties.
The new section affects Title 3, Subtitle D of the Texas Occupations Code and Title 22, Part 5 of the Texas Administrative Code.
§115.9.Dishonorable Conduct.
The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees. The purpose of this section is to identify unprofessional or dishonorable behaviors of a licensee which the Board believes are likely to pose a threat to the public. Actual injury to a patient need not be established for a licensee to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to:
(1) Criminal conduct--including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.
(2) Deception or misrepresentation--engages in deception or misrepresentation:
(A) in soliciting or obtaining patronage; or
(B) in obtaining a fee.
(3) Fraud in obtaining a license--obtains a license by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.
(4) Misconduct involving drugs or alcohol--actions or conduct that include, but are not limited to:
(A) providing dental services to a patient while the licensee is impaired through the use of drugs, narcotics, or alcohol;
(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs; or
(C) improperly obtained, possessed, or used habit-forming drugs or narcotics.
(5) Failure to comply with applicable laws, rules, regulations, and orders--violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.
(6) Inability to practice safely--is physically or mentally incapable of practicing in a manner that is safe for the person's dental patients.
(7) Discipline of a licensee by another state board--holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:
(A) reprimands the person;
(B) suspends or revokes the person's license or certificate or places the person on probation; or
(C) imposes another restriction on the person's practice.
(8) Unprofessional conduct--engages in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002487
Sherri Sanders Meek
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 463-6400
CHAPTER 211. GENERAL PROVISIONS
INTRODUCTION. The Texas Board of Nursing (Board) proposes an amendment §211.6 (relating to Committees of the Board). The proposed amendment 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.
SB 1415 enacts a significant change to the Nursing Practice Act (Chapter 301) that affects the regulation of individuals subject to Chapter 301. SB 1415 adds new §301.1607 to 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, 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 would be 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 proposing 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 proposed elsewhere in this issue of the Texas Register.
The Board is proposing 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, proposed 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 proposed 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 proposed 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 proposed new subparagraph also prescribes the members of the new advisory committee. Specifically, proposed 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 proposed 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 proposed 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 committees become more specialized and technical, the Board finds it helpful, at times, to appoint additional members that have specialized knowledge that is relevant to the work of a committee. Maintaining the flexibility to appoint additional committee members provides the Board the opportunity to grow the expertise of its advisory committees, which should result in more informed committee recommendations and more effective regulation.
Section-by-Section Overview. Proposed 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 of this title. Further, proposed new §211.6(f)(1)(E) provides that the Committee shall be abolished when the deferred disciplinary action pilot program under §213.34 of this title comes to an end, but in no event later than January 1, 2014. Finally, proposed 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.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposal will be in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposal is in effect, the anticipated public benefit will be the adoption of requirements that: (i) implement SB 1415; (ii) provide the Board with assistance in overseeing and evaluating the pilot program; and (iii) ensure the protection of the public health, safety, and welfare.
SB 1415 provides individuals with an opportunity to resolve certain violations of the Nursing Practice Act and Board rules through a less punitive process than traditional Board discipline. Under SB 1415, individuals will be able to resolve minor violations of the Nursing Practice Act and Board rules through a deferred disciplinary action. The Board is proposing new §213.34 of this title to establish the parameters and limitations of the deferred disciplinary action pilot program. The Board is proposing new §211.6(f)(1)(E) to establish a new advisory committee to assist the Board in overseeing and evaluating the pilot program under new §213.34 of this title.
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 implemented such a program. As such, the Board may encounter complications or obstacles associated with the implementation, evaluation, and oversight of the pilot program. The new advisory committee is designed to assist the Board in its task of overseeing and evaluating the pilot program. The new advisory committee will be comprised of members with experience and expertise in nursing practice, education, and discipline. Several of the members of the new advisory committee may also have additional technical and subject matter expertise in areas relevant to the pilot program, such as the remediation of nursing practice errors. The Board anticipates relying on the expertise of these members to identify goals for the pilot program; to identify potential complications; to create benchmarks for measuring the effectiveness of the program; to identify the successes and failures of the pilot program; and to formulate new ideas for improving the success of the pilot program. By working in collaboration with the new advisory committee, the Board anticipates that it will be better able to respond to unanticipated complications; identify areas that require change; monitor the effectiveness of the pilot program; and facilitate the success of the pilot program.
Under the Occupations Code §301.1607 and proposed new §211.6(f)(1)(E), an individual may be appointed to serve on the Committee as a representative of one of 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, an individual may be appointed to serve on the Committee as the representative of a public advocacy organization. Additional individuals may also be appointed to serve on the Committee as deemed necessary by the Board. No individual, however, is required by law to serve on the Committee. Rather, an individual who is appointed to serve on the Committee does so on a purely voluntary basis. There may be costs, however, associated with serving as a member of the Committee. The total probable costs associated with proposed new §211.6(f)(1)(E) may vary substantially among Committee members depending upon the following factors: (i) a member's proximity to Austin, Texas, where the Committee meetings will be held; (ii) a member's travel costs, including costs for lodging, meals, airfare or mileage; (iii) the frequency and duration of the Committee meetings; and (iv) whether a Committee member is reimbursed by his or her sponsoring organization for his or her incurred expenses. The Board anticipates that the Committee will meet in Austin, Texas, at least twice a year. Further, the Board anticipates that each Committee meeting will only last one day. Committee members that reside outside of Austin, Texas, can be expected to incur higher travel costs than those Committee members residing in Austin, Texas, or in the surrounding areas. Committee members are not compensated or reimbursed by the Board for their incurred costs in serving on the Committee. However, an individual's sponsoring organization may reimburse a Committee member for his or her incurred costs as it deems necessary. Further, each Committee member has the information necessary to estimate his or her own costs. Any other costs associated with proposed new §211.6(f)(1)(E) result from the legislative enactment of §301.1607 and are not a result of the adoption, enforcement, or administration of the proposal.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposal will not have an adverse economic effect on any person required to comply with the proposal because no person required to comply with the requirements of the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or §2006.001(2). The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The proposal establishes a new advisory committee to provide assistance to the Board. The Committee will be comprised of individuals who represent specified stakeholder organizations. An individual's participation in the Committee is purely voluntary. Further, as has been stated in the Public Benefit/Cost Note section of this proposal, any costs associated with the proposal may be incurred by the individual members of the Committee. Because individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual qualifies as a micro business or small business under the Government Code §2006.001(1) or §2006.001(2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 21, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The amendment is proposed 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.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Rule §211.6, Statute §301.1607 and §301.151.
§211.6.Committees of the Board.
(a) - (e) (No change.)
(f) Advisory Committees. The president may appoint, with the authorization of the board, advisory committees for the performance of such activities as may be appropriate or required by law.
(1) The board has established the following committees that advise the board on a continuous basis or as charged by the Board:
(A) - (D) (No change.)
(E) the Deferred Disciplinary Action Pilot Program Advisory Committee (DDAPPAC) assists the Board in overseeing and evaluating the deferred disciplinary action pilot program under §213.34 of this title (relating to Deferred Disciplinary Action Pilot Program). The DDAPPAC shall be abolished when the deferred disciplinary action pilot program under §213.34 of this title comes to an end, but in no event later than January 1, 2014. The DDAPPAC is 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.
(2) - (12) (No change).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 4, 2010.
TRD-201002346
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) proposes amendments to §213.30 (relating to Declaratory Order of Eligibility for Licensure). The amendments are proposed 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 Legislature, Regular Session, 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 §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 exception. New Subchapter D imposes a 90 day deadline in which a licensing authority must render an eligibility determination. Section 301.257 contains no such comparable provision. As a result, the Board determined that it would need to implement new procedures to ensure compliance with this provision of new Subchapter D.
The Board estimates that it should be able to issue a final 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 individuals submit incomplete information to the Board, and the Board must request additional documentation before being able to complete the investigation of the individual's eligibility. For example, the Board requires an individual seeking an eligibility determination related to the individual's prior criminal history to submit copies of indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, as applicable. 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 proposing amended §213.30(d) to clarify that the Board's investigation of an individual's eligibility will not begin until an 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 proposed amendment is important for several reasons.
First, the proposed amendment ensures that the Board will be able to consistently meet the 90-day time requirement of new Subchapter D. Second, the proposed amendment ensures that eligibility determinations will only be made following a thorough investigation of an individual's eligibility. Providing the Board with 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 licensure is safe to practice nursing upon licensure, which is vital in protecting the public safety and welfare.
The Board is proposing 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 proposing amendments to §213.30(a) and (k) in order to promote internal consistency among Board rules regarding eligibility determinations. Specifically, the proposed 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 has submitted an application for licensure to the Board under §§217.2(b), 217.4(d), or 217.5(e) or a petition for a declaratory order of eligibility 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 proposed 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 filing an application for licensure under §§217.2(b), 217.4(d), and 217.5(e). The proposed amendments to §213.30(k) also serve a similar purpose. Proposed amended §213.30(k) reiterates 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 that section. The Board has centrally located the specific procedures and requirements related 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 proposed amendments to §213.30(a) and (k) serve to bolster the clarity of the Board's rules in this regard. Further, the proposal replaces certain references to the term "applicant" throughout §213.30 with references to the term "petitioner" in an effort to provide consistency and cohesiveness within the section.
Remaining Amendments
The remaining proposed 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 proposed 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. Proposed amended §213.30(b), (c), (e), (f), (g), (h), (i) and (j) set forth requirements and procedures that an individual must meet prior to receiving an eligibility determination from the Board. For example, these subsections prescribe the types of documentation that must be submitted to the Board during an investigation of an individual's eligibility. The proposed amendments also address an individual's options for re-petitioning the Board after receiving a final eligibility determination. Each of the provisions in proposed 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 proposing to alter or eliminate any of these existing requirements or procedures. Rather, these provisions have only been relocated throughout the section as necessary. 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.
Section-by-Section Overview. Proposed 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.
Proposed 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.
Proposed §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 of this chapter (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.
Proposed 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.
Proposed 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.
Proposed 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 of this chapter (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.
Proposed 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 of this chapter (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.
Proposed 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 of this chapter (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 of this chapter (relating to Decision of the Board).
Proposed 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.
Proposed 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 at (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
Proposed 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 §213.30, and the individual will be treated as a petitioner under §213.30, and will be required to pay the non-refundable fee required by §213.30.
Finally, proposed 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.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be the adoption of requirements that: (i) implement HB 963; and (ii) promote consistency among Board rules regarding eligibility determinations.
HB 963, which was enacted by the 81st Legislature, authorizes an individual to request a "criminal history evaluation letter" from a licensing authority. Section 301.257 also addresses an individual's right to petition the Board for an eligibility determination. The provisions of HB 963 were modeled after the provisions of §301.257. While all licensing authorities are subject to the requirements of HB 963, the Board is also subject to the requirements of §301.257. The Board has carefully evaluated its current procedures and requirements for investigating and issuing final eligibility determinations under §301.257, and has determined that its existing procedures and requirements meet the new requirements of HB 963, with one exception. Unlike §301.257, HB 963 prescribes a specific time period in which a licensing authority must issue a final eligibility determination. As such, the Board is proposing amendments to §213.30, in part, to ensure compliance with this statutory deadline. Under the proposed amendments, the Board is not required to begin an investigation of an individual's eligibility until the Board has received all necessary and required documentation from the individual. Once all the necessary documentation has been received by the Board, the Board will then promptly begin its investigation of the individual's eligibility for licensure. This proposed requirement is important for several reasons. Currently, the Board must postpone an eligibility investigation once it determines that certain, necessary documentation has not been submitted for the Board's review. This can significantly delay the completion of the Board's investigation and final eligibility determination. The proposed amendments, however, do not require the Board to even begin an eligibility investigation until all necessary documentation has been provided to the Board for its review. The proposed amendments allow an eligibility investigation to be completed in a more timely and efficient manner. Once the investigation has been completed, the Board can then issue its final eligibility determination. The Board anticipates that the proposed amendments will greatly reduce the amount of time it takes to issue a final eligibility determination, which benefits both the Board and those individuals seeking determinations from the Board. Further, the proposed amendments are designed to ensure that the Board has reviewed all the relevant information regarding an individual's eligibility before making a final eligibility determination. The Board has a duty to ensure that all individuals seeking licensure are safe to practice nursing upon licensure. In order to do so, the Board must base its eligibility determinations on complete sets of verifiable facts and evidence. Sometimes, additional time is required in order to obtain all necessary documentation for review, such as copies of older criminal indictments or convictions or mental health or chemical dependency evaluations. The Board must be able to review such documentation, however, before making its final eligibility determination, in order to ensure that its determination is informed and deliberative. The proposed amendments provide the Board the opportunity to receive all necessary information before being required to issue a final eligibility determination. As a result, the Board will be able to make timely, but appropriate eligibility determinations, which should result in more efficient and effective regulation.
Finally, the proposed amendments are designed to promote consistency among Board rules regarding eligibility determinations. Specifically, the proposed amendments reiterate and reinforce the provisions of §§217.2(b), 217.4(d), and 217.5(e) as they relate to eligibility determinations. While the specific requirements and procedures regarding eligibility determinations are centrally located in §213.30, the provisions of §§217.2(b), 217.4(d), and 217.5(e) ensure that all individuals who require eligibility determinations from the Board will be treated equally under the provisions of §213.30. By ensuring that its rules are organized and consistent, the Board furthers a clearer understanding of its expectations and requirements. Such consistency also facilitates fair and balanced regulation. There are no anticipated economic costs to persons who are required to comply with the proposal. None of the proposed amendments substantively alter the existing requirements of §213.30 or impose new or additional requirements or restrictions upon individuals required to comply with §213.30. Proposed amended §213.30(d) implements a procedure for ensuring that eligibility determinations are issued in accordance with the time limits prescribed by HB 963. Proposed amended §213.30(a) and (k) reiterate the provisions of §§217.2(b), 217.4(d), and §217.5(e) for consistency and cohesiveness among Board rules. Proposed amended §213.30(b), (c), (e), (f), (g), (h), (i) and (j) re-designate the existing subsections of §213.30. The Board does not anticipate that the proposed amendments will subject any new individuals to the provisions of §213.30. Further, the proposed amendments do not substantively alter the existing provisions of §213.30, nor do they impose any new or additional requirements or restrictions upon individuals required to comply with the section. As a result, the Board does not anticipate that the proposed amendments will impose any new costs on individuals required to comply with the proposal. Further, the Board does not anticipate altering its historical interpretation or application of the requirements of §213.30, nor does it anticipate that an individual's method of compliance with these requirements will be altered due to the proposed amendments.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because no small or micro business is subject to the requirements of the proposal. The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The only entities subject to the proposed amendments are individuals. Because individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual qualifies as a micro business or small business under the Government Code §2006.001(1) or §2006.001(2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 21, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The amendments are proposed 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.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Rule §213.30, Statute Occupations Code §§53.101 - 53.105, 301.257, and 301.151.
§213.30.Declaratory Order of Eligibility for Licensure.
(a) For purposes of this section only, "petitioner" means 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 of this title (relating to Temporary License and Endorsement); or
(3) seeks licensure by examination pursuant to §217.2 (relating to Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions) or §217.4 (relating to Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction) of this title.
[(a) A person enrolled
or planning to enroll in an educational nursing program that prepares
a person for an initial license as a registered or vocational nurse
or an applicant who seeks licensure by endorsement pursuant to §217.5
of this title (relating to Temporary License and Endorsement) who
has reason to believe that he or she may be ineligible for licensure,
may petition the Board for a declaratory order or apply for a license
by endorsement as to his or her eligibility.]
(b) 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.
[(b) The person must submit
a petition or application on forms provided by the Board which includes:]
[(1) a statement by the petitioner or applicant indicating the reason(s) and basis of potential ineligibility;]
[(2) 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;]
[(3) if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 of this chapter (relating to Factors Considered for Imposition of Penalties/Sanctions and/or Fines) and evidence of treatment;]
[(4) if the potential ineligibility is due to chemical dependency including alcohol, evidence of an evaluation that meets the criteria of §213.33 of this chapter and treatment, after care and support group attendance; and]
[(5) the required fee which is not refundable.]
(c) A petitioner must submit a petition on forms provided by the Board, which includes:
(1) a statement by the petitioner indicating the reason(s) and basis of potential ineligibility;
(2) 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;
(3) if the potential ineligibility is due to mental illness, evidence of an evaluation that meets the criteria of §213.33 of this chapter (relating to Factors Considered for Imposition of Penalties/Sanctions) and evidence of treatment;
(4) if the potential ineligibility is due to chemical dependency, including alcohol, evidence of an evaluation that meets the criteria of §213.33 of this chapter and treatment, after care, and support group attendance; and
(5) the required fee, which is not refundable.
[(c) An investigation of
the petition/application and the petitioner's/applicant's eligibility
shall be conducted.]
(d) Once the Board has received all necessary information, including the information required by subsection (c) of this section, an investigation of the petition and the petitioner's eligibility shall be conducted.
[(d) The petitioner/applicant
or the Board may amend the petition/application to include additional
grounds for potential ineligibility at any time before a final determination
is made.]
(e) 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.
[(e) If an applicant under §217.5
of this title has been licensed to practice professional or vocational
nursing in any jurisdiction and has been disciplined, or allowed to
surrender in lieu of discipline, in that jurisdiction, the following
provisions shall govern the eligibility of the applicant under §213.27
of this title (relating to Good Professional Character).]
[(1) 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 other jurisdiction that the applicant has committed professional misconduct is conclusive of the professional misconduct alleged in such order or judgment.]
[(2) An applicant disciplined for professional misconduct in the course of nursing in any jurisdiction or an applicant who resigned in lieu of disciplinary action is deemed to not have present good professional character under §213.27 of this title and is therefore ineligible to file an application under §217.5 of this title during the period of such discipline imposed by such jurisdiction, and in the case of revocation or surrender in lieu of disciplinary action, until the applicant has filed an application for reinstatement in the disciplining jurisdiction and obtained a final determination on that application.]
(f) If an individual seeking licensure by endorsement pursuant to §217.5 of this title 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 of this chapter (relating to Good Professional Character).
(1) 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.
(2) 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 of this chapter, and is therefore ineligible to seek licensure by endorsement under §217.5 of this title 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.
[(f) If a petitioner's/applicant's
potential ineligibility is due to criminal conduct and/or conviction,
the following provisions shall govern the eligibility of the applicant
under §213.28 of this title (relating to Licensure of Persons
with Criminal Convictions):]
[(1) The record of conviction or order of deferred adjudication is conclusive evidence of guilt.]
[(2) 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 or applicant 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 or applicant possesses present good professional character and fitness.]
(g) 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 of this chapter (relating to Licensure of Persons with Criminal Convictions).
(1) The record of conviction, guilty plea, or order of deferred adjudication is conclusive evidence of guilt.
(2) 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.
[(g) If the executive director
proposes to find the petitioner or applicant ineligible for licensure,
the petitioner or applicant may obtain a hearing before the State
Office of Administrative Hearings. The Executive Director shall have
discretion to set a hearing and give notice of the hearing to the
petitioner or applicant. The hearing shall be conducted in accordance
with §213.22 of this title (relating to Formal Proceedings) and
the rules of SOAH. When in conflict, SOAH's rules of procedure will
prevail. The decision of the Board shall be rendered in accordance
with §213.23 of this title (relating to Decision of the Board).]
(h) 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). The Executive Director shall have discretion to set a hearing and give notice of the hearing to the petitioner. The hearing shall be conducted in accordance with §213.22 of this chapter (relating to Formal Proceedings) and the rules of SOAH. When in conflict, SOAH's rules of procedure will prevail. The decision of the Board shall be rendered in accordance with §213.23 of this chapter (relating to Decision of the Board).
[(h) A final Board order
is issued after an appeal results in a Proposal for Decision from
SOAH. The Board's final order must set out each basis for potential
ineligibility and the Board's determination as to eligibility. 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 person'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 application for licensure until after
the expiration of three years from the date of the Board's order denying
the petition or application for licensure. If the applicant or petitioner
does not appeal or request a formal hearing at SOAH after a letter
proposal to deny eligibility made by the E&D Committee or the
executive director, the applicant or petitioner may re-petition after
the expiration of one year from the date of the proposal to deny eligibility,
in accordance with this rule and §301.257, Texas Occupations Code.]
(i) A final Board order is issued after an appeal results in a Proposal for Decision from SOAH. The Board's final order must set out each basis for potential ineligibility and the Board's determination as to eligibility. 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. 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.
[(i) The following disciplinary
and eligibility sanction policies and guidelines shall be used by
the Executive Director, the State Office of Administrative Hearings
(SOAH), when recommending a declaratory order of eligibility; and
the Board in determining the appropriate declaratory order in eligibility
matters:]
[(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]
[(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]
[(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]
[(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]
[(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register at (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.]
(j) The Disciplinary Matrix and factors set forth in §213.33(b) and (c) of this chapter 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:
(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.
(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register at (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.
(k) If an individual seeking licensure by endorsement under §217.5 of this title or licensure by examination under §217.2 or §217.4 of this title 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.
(l) This section implements the requirements of the Occupations Code Chapter 53 Subchapter D and the Occupations Code §301.257.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 10, 2010.
TRD-201002488
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) proposes new §213.34 (relating to Deferred Disciplinary Action Pilot Program). The proposed 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 (the 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, or 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 would be 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.
Proposed Rule
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. Proposed new §213.34 establishes the parameters and limitations of the pilot program, as determined necessary by the Board.
Proposed 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 was 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.
Proposed new §213.34(c), (d), and (e) establish the eligibility criteria for the pilot program. First, proposed 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, proposed new §213.34(d) and (e) prescribe the specific limitations and restrictions of the pilot program. These proposed 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 in 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.
Proposed new §213.34(f) further limits the pilot program to individuals who are licensed to practice nursing in the State of Texas. This proposed 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.
Proposed 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, as a remote state, 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.
Proposed 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 proposed 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. Proposed 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. Proposed 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 proposed 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, proposed 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, proposed 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 proposed 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.
Section-by-Section Overview. The proposed new title of §213.34 is "Deferred Disciplinary Action Pilot Program".
Proposed new §213.34(a) states that the section implements the deferred disciplinary action pilot program authorized by the Occupations Code §301.1607. Further, proposed new §213.34(a) provides that the pilot program will commence on February 1, 2011, and will conclude no later than January 1, 2014.
Proposed 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.
Proposed 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.
Proposed 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.
Proposed 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.
Proposed 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.
Proposed 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, proposed new §213.34(g) provides that, after such time, the deferred disciplinary order will not be available to the public.
Proposed 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. Proposed 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, proposed new §213.34(i) states that the outcome and effectiveness of the pilot program will be evaluated by the Board on a regular basis.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed new section will be in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed new section is in effect, the anticipated public benefits will be the adoption of requirements that: (i) implement SB 1415; (ii) provide individuals with a less punitive alternative for resolving minor violations of the Nursing Practice Act and Board rules; and (iii) ensure the protection of the public health, safety, and welfare.
SB 1415 and the proposed new section provide individuals with an opportunity to resolve certain violations of the Nursing Practice Act and Board rules through a less punitive process than traditional Board discipline. This new option is beneficial to both the Board and eligible individuals. Under SB 1415 and the proposed new section, individuals will be able to resolve minor violations of the Nursing Practice Act and Board rules through a deferred disciplinary action. This is beneficial to individual licensees because a deferred disciplinary action, once successfully completed, may become confidential and will not be available for public disclosure. Prior to the enactment of SB 1415, an individual who committed a violation of the Nursing Practice Act and Board rules was limited to resolving the matter through a public, disciplinary action, even in situations where the violation was relatively minor and resulted in the issuance of a remedial education order or the imposition of a fine. The Board believes that serious violations of the Nursing Practice Act and Board rules warrant public reporting and monitoring. However, the Board recognizes that some minor violations of the Nursing Practice Act and Board rules may be successfully remediated and should not result in indefinite public disclosure. As a result, proposed new §213.34 establishes a deferred disciplinary action pilot program that allows certain, minor violations of the Nursing Practice Act and Board rules to become confidential once an individual has successfully completed all of the conditions of the deferred disciplinary action. The pilot program is only available for violations of the Nursing Practice Act and Board rules that are minor in nature and involve a low risk of harm to the public. Serious violations of the Nursing Practice Act and Board rules, such as conduct involving sexual misconduct, criminal conduct, falsification, deception, and substance abuse or chemical dependency, are excluded from the pilot program. Additionally, the Board is proposing that individuals with prior disciplinary history not be eligible to participate in the pilot program. These safeguards are necessary to protect the public from patterns of repeated conduct that could result in harm. Further, the pilot program will exclude individuals who have requested eligibility determinations from the Board and individuals who are practicing nursing in Texas on a nurse licensure compact privilege. These proposed exclusions are necessary to ensure that the public is appropriately notified of all eligibility determinations, which often relate to an individual's prior criminal history. Further, the proposed requirements are necessary to encourage the issuance of consistent disciplinary actions against individuals in Compact states. In these ways, the proposed new section strikes an appropriate balance between the private interests of regulated individuals who are eligible to participate in the pilot program and the protection of the public health, safety, and welfare.
There are no anticipated economic costs to persons who are required to comply with the proposal. The proposed new section establishes the parameters and limitations of the pilot program. Only those individuals that are eligible to participate in the pilot program will be subject to the requirements of the proposal. However, no provision of the proposal imposes costs upon the individuals required to comply with the proposal. First, the proposed new section establishes the purpose of the rules. However, this statement of purpose does not impose costs upon any individual required to comply with the proposal. The proposed new section also establishes the beginning and end of the pilot program. However, this proposed provision does not impose costs upon any individual required to comply with the proposal. The proposed new section also prescribes the eligibility criteria for the pilot program. Specifically, the proposed new section provides that the pilot program will only be available: (i) to individuals with no prior disciplinary history with the Board; (ii) for minor violations of the Nursing Practice Act and Board rules that may be resolved 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) as a condition of settlement by agreement prior to initiating proceedings before SOAH; (iv) if an individual's practice deficit, knowledge deficit, or lack of situational awareness is able to be addressed through the conditions of a deferred disciplinary action; and (v) for violations of the Nursing Practice Act and Board rules that were pending with the Board on September 1, 2009, or after. While these proposed provisions limit the availability of the pilot program to certain, qualifying individuals, the proposal does not impose any costs upon the individuals who are required to comply with the proposal. The issuance of a disciplinary action against an individual may result in the imposition of costs upon the individual, such as the cost of a required fine or the cost of required remedial education courses. The proposal, however, does not address the requirements of a particular disciplinary action against an individual. Rather, the proposal references the types of disciplinary actions that may be included in the pilot program. The specific requirements of these disciplinary actions, such as the specific amount of a fine that may be incurred or the specific probationary conditions that may be imposed, have already been addressed in other Board rules, and the proposal does not address, alter, or supplement the requirements of those rules or the Board's application of those rules. Further, the Board does not anticipate that its application or interpretation of those rules will change as a result of this proposal. The proposed new section limits the availability of the pilot program to certain individuals. However, these proposed limitations do not impose costs on any individual required to comply with the proposal. The proposal also addresses the confidential nature of a deferred disciplinary action once successfully completed. However, these proposed provisions do not impose any costs on an individual required to comply with the proposal. Further, the proposed new section addresses the failure of an individual to successfully complete the conditions of a deferred disciplinary action. While the proposed new section authorizes the Board to treat the deferred disciplinary action as prior disciplinary action when considering the imposition of a new sanction, the proposal does not address the specific requirements of the sanction to be imposed or establish requirements for such a sanction. As previously stated, the specific requirements of a disciplinary action available to the Board, including the specific amount of a fine that may be imposed upon an individual or the specific probationary conditions that may be imposed upon an individual, have already been addressed in other Board rules, and the proposal does not address or alter the requirements of those rules. Further, the Board does not anticipate that its application or interpretation of those rules will change as a result of this proposal. Finally, the proposed new section requires the Board to periodically review the outcome and effectiveness of the pilot program, but this proposed new provision does not impose any costs on an individual required to comply with the proposal.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposal will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person who is required to comply with the proposal.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 21, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The new section is proposed 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.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Rule §213.34, Statute §301.1607 and §301.151.
§213.34.Deferred Disciplinary Action Pilot Program.
(a) This section implements the deferred disciplinary action pilot program authorized by the Occupations Code §301.1607. The pilot program will commence on February 1, 2011, and will conclude no later than January 1, 2014.
(b) 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.
(c) The opportunity to enter into a deferred disciplinary order under the pilot program is at the sole discretion of the Executive Director.
(d) A deferred disciplinary action under the pilot program will be available:
(1) for individuals with no prior disciplinary history with the Board;
(2) 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;
(3) only as a condition of settlement by agreement prior to the initiation of proceedings before the State Office of Administrative Hearings;
(4) 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
(5) for violations of the Nursing Practice Act and/or Board rules that were pending with the Board on September 1, 2009, or after.
(e) 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.
(f) A deferred disciplinary action under the pilot program will not be available to:
(1) an individual who files a petition for declaratory order under §213.30 of this title (relating to Declaratory Order of Eligibility for Licensure);
(2) 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
(3) an individual who is practicing nursing in Texas on a nurse licensure compact privilege.
(g) 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. After such time, the deferred disciplinary order will not be available to the public.
(h) 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. 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.
(i) The outcome and effectiveness of the pilot program will be evaluated by the Board on a regular basis.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 3, 2010.
TRD-201002160
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 305-6822
INTRODUCTION. The Texas Board of Nursing (Board) proposes 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. These amendments are proposed 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 proposed 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.
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 proposed 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 proposed amendments do not alter the Board's historic interpretation or application of the provisions of these rules. Rather, the Board is proposing 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 proposing 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 proposed for elimination 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. 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 better understanding of the Board's requirements. Further, the proposed amendments to §§217.2(b), 217.4(d), and 217.5(e) do not specifically relate to an eligibility determination. Rather, these sections 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 does not alter the existing language of these sections, but 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 proposed 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.
FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposal.
PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendments will be in effect, the anticipated public benefit will be the adoption of clear and consistent requirements and the elimination of redundant provisions, which should result in more effective and efficient regulation.
There are no anticipated economic costs to persons who are required to comply with the proposal. None of the proposed amendments substantively alter the existing requirements of §§217.2, 217.4, or 217.5 or impose new or additional requirements or restrictions upon individuals required to comply with the proposal. Rather, the proposed amendments clarify the existing provisions related to an eligibility determination for an individual filing an application under §§217.2, 217.4, and 217.5. The Board does not anticipate altering its historical interpretation or application of these requirements nor does it anticipate that an individual's method of compliance with these requirements will be altered due to the proposed amendments. Further, the proposed amendments eliminate redundant provisions from §§217.2, 217.4, or 217.5 that are more appropriately addressed in §213.30. However, these proposed amendments do not substantively affect the requirements of the sections nor do they impose any new or additional requirements or restrictions upon individuals required to comply with the proposal.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person who is required to comply with the proposal.
TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.
REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 21, 2010, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.
STATUTORY AUTHORITY. The amendments are proposed 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.
CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal: Occupations Code §§53.101 - 53.105, 301.257, and 301.151
§217.2.Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions.
(a) (No change.)
(b) 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 of this title (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.
[(b) 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, (see §213.30 of this title relating to Declaratory
Order of Eligibility for Licensure and Texas Occupations Code §301.257
relating to Declaratory Order of License Eligibility) then the application
will be treated and processed as a Petition for Declaratory Order
and the applicant will be required to pay the appropriate non-refundable
fees for determination of eligibility. Should the Board in its final
determination find that the individual is not eligible for licensure,
then that individual is precluded from again petitioning, or applying
to the Board for admission to the examination except when the impediment
to eligibility has been removed. In no event, may an applicant repetition
for a declaratory order before the first anniversary of the date of
the Board's determination to deny eligibility. Any subsequent petition
must be made in the manner and form the Board requires.]
(c) - (f) (No change.)
§217.4.Requirements for Initial Licensure by Examination for Nurses Who Graduate from Nursing Education Programs Outside of United States' Jurisdiction.
(a) - (c) (No change.)
(d) 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 of this title (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.
[(d) Should it be ascertained from
the application filed, or from other sources, that the applicant should
have had an eligibility issue settled by way of a Petition for Declaratory
Order, (see §213.30 of this title relating to Declaratory Order
of Eligibility for Licensure and Texas Occupations Code §301.257
relating to Declaratory Order of License Eligibility) then the application
will be treated and processed as a Petition for Declaratory Order
and the applicant will be required to pay the appropriate non-refundable
processing fees. Should the Board finally determine that the individual
is not eligible to be admitted to the examination, then that individual
is precluded from again petitioning, or applying to the Board for
admission to the examination except when the impediment to eligibility
for licensure has been removed. In no event, may an applicant re-petition
for a declaratory order before the first anniversary of the date of
the Board's determination to deny eligibility. Any subsequent petition
must be made in the manner and form the Board requires.]
(e) - (f) (No change.)
§217.5.Temporary License and Endorsement.
(a) - (d) (No change.)
(e) 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 of this title (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.
[(e) Should it be ascertained from
the application filed, or from other sources, that the applicant should
have had an eligibility issue settled in accordance with Texas Occupations
Code §301.257 (Declaratory Order of License Eligibility) and §§213.27,
213.28 and 213.29 (relating to Good Professional Character, Licensure
of Persons with Criminal Convictions, and Eligibility and Disciplinary
Criteria Regarding Intemperate Use and Lack of Fitness), then the
application will be treated and processed as a Petition for Eligibility
Order for LVN or RN Endorsement and the applicant will be required
to pay the appropriate processing fees which are not refundable.]
[(f) Should the Board in its final determination find that the individual is not eligible for licensure as a nurse in Texas, then that individual is precluded from again petitioning, or applying to the Board for licensure until the impediment to eligibility for licensure has been removed.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 6, 2010.
TRD-201002475
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 20, 2010
For further information, please call: (512) 305-6822