TITLE 22. EXAMINING BOARDS

PART 8. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD

CHAPTER 153. RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT

22 TAC §153.21

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to §153.21, Appraiser Trainee and Supervisory Appraisers. The proposed amendments would allow supervisory appraisers to supervise up to five appraiser trainees if the supervisory appraiser and all of the trainees supervised by that supervisory appraiser meet certain additional criteria as required by the Appraiser Qualifications Board (AQB). The additional criteria include the requirements that the supervisory appraiser must have been a certified appraiser for more than five years and that all appraiser trainees supervised by that supervisory appraiser must participate in the voluntary experience reviews established in §153.22 of this chapter.

Kristen Worman, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the proposed amendments. There is no significant impact anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments.

Ms. Worman has also determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the section as proposed will be providing an opportunity for supervisory appraisers to supervise more appraiser trainees and encouraging new appraiser trainees to enter the appraisal field consistent with the requirements under state and federal law.

For each year of the first five years the proposed amendments are in effect the amendments will not:

1) create or eliminate a government program;

2) require the creation of new employee positions or the elimination of existing employee positions;

3) require an increase or decrease in future legislative appropriations to the agency;

4) require an increase or decrease in fees paid to the agency;

5) create a new regulation;

6) expand, limit or repeal an existing regulation; or

7) increase or decrease the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there will be a positive impact on the state's economy as supervisory appraisers will be able to supervise more appraiser trainees, thereby providing increased job opportunities for persons wanting to enter the appraisal profession.

Comments on the proposed amendments may be submitted to Kristen Worman, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §1103.151, which authorizes TALCB to adopt rules relating to certificates and licenses, and §1103.152, which authorizes TALCB to prescribe qualifications for appraisers that are consistent with the qualifications established by the Appraiser Qualifications Board.

The statute affected by these amendments is Chapter 1103, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§153.21.Appraiser Trainees and Supervisory Appraisers.

(a) Supervision of appraiser trainees required.

(1) An appraiser trainee may perform appraisals or appraiser services only under the active, personal and diligent direction and supervision of a supervisory appraiser.

(2) An appraiser trainee may be supervised by more than one supervisory appraiser.

(3) Number of Appraiser Trainees Supervised.

(A) Supervisory appraisers may supervise no more than three appraiser trainees at one time unless the requirements in subsection (a)(3)(B) are met; or [.]

(B) Supervisory appraisers may supervise up to five appraiser trainees at one time if:

(i) the supervisory appraiser has been licensed as a certified appraiser for more than five years; and

(ii) all of the supervisory appraiser's appraiser trainees participate in the voluntary trainee experience reviews established in §153.22 of this chapter.

(4) A supervisory appraiser may be added during the term of an appraiser trainee's license if:

(A) The supervisory appraiser and appraiser trainee have provided proof to the Board of completion of an approved Appraiser Trainee/Supervisory Appraiser course;

(B) an application to supervise has been received and approved by the Board; and

(C) the applicable fee has been paid.

(5) A licensed appraiser trainee who signs an appraisal report must include his or her license number and the word "Trainee" as part of the appraiser trainee's signature in the report.

(b) - (h) (No change).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 20, 2017.

TRD-201704729

Kristen Worman

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 936-3652


PART 9. TEXAS MEDICAL BOARD

CHAPTER 183. ACUPUNCTURE

22 TAC §§183.4, 183.19, 183.20

The Texas State Board of Acupuncture Examiners (Board) proposes amendments to §183.4, concerning Licensure, §183.19, concerning Acupuncture Advertising, and §183.20, concerning Continuing Acupuncture Education.

The amendments to §183.4 add new language under subsection (a)(5) that allows an applicant for licensure to appear before the licensure committee of the Board to request reconsideration of the applicant's ineligibility based on their failure to pass the NCCAOM examination within five attempts. Such amendment allows the Board discretion to reconsider such ineligibility determination. The proposed amendments delete obsolete language from subsection (a)(7). The proposed amendments to subsection (a)(9) provide an alternate mechanism to cure active practice issues faced by some licensure applicants. The remainder of the changes are corrections to punctuation and grammar.

The amendments to §183.19 remove language requiring that an acupuncturist include their license number on print advertising.

The amendments to §183.20 add language to subsection (b)(1) to clarify the criteria for the courses from which the requisite CAE hours are taken. The proposed amendment adds new subsection (b)(2) to specify the number of CAE hours and specific topics which must be taken each year. New subsection (b)(3) is added to clarify the number of CAE hours from courses approved under each category delineated under subsection (b)(1). Spelling corrections were made in subsections (h) and (o).

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be to allow the board discretion to reconsider an applicants' ineligibility, based on an inability to pass the NCCAOM examination within five attempts. The public benefit anticipated as a result of enforcing new subsection (a)(9) will be to allow the board an alternate solution to active practice concerns. Lastly, the public benefit anticipated as a result of enforcing this section will be to have rules that are grammatically correct and consistent with statutes; to eliminate unnecessary requirements related to acupuncturists' print advertisements and to have CAE rules that are clear and consistent with current processes, and to eliminate confusion and redundancies.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no fiscal impact or effect on government growth as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed. There will be no effect on small or micro businesses or rural communities.

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed amendments will be in effect, the agency has determined the following: The proposed rules do not create or eliminate a government program. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency. The proposed rules do not require an increase or decrease in fees paid to the agency. The proposed rules do create a new regulation as described above. The proposed rules do not limit an existing regulation; however, they do expand an existing regulation in that they provide an alternative mechanism to meet active practice requirements for licensure and allow the board discretion to reconsider an applicant's ineligibility based on inability to pass required exams. The proposed rules also repeal an existing regulation as described above. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability. The proposed rules do not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or e-mailed to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §205.101, which provides authority for the Board to recommend rules to establish licensing and other fees and recommend rules necessary to administer and enforce this chapter.

No other statutes, articles or codes are affected by this proposal.

§183.4.Licensure.

(a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant meets the following requirements:

(1) is at least 21 years of age;

(2) is of good professional character as defined in §183.2 of this chapter (relating to Definitions);

(3) has successfully completed 60 semester hours of general academic college level courses, other than in acupuncture school, that are not remedial and would be acceptable at the time they were completed for credit on an academic degree at a two or four year institution of higher education within the United States accredited by an agency recognized by the Higher Education Coordinating Board or its equivalent in other states as a regional accrediting body. Coursework completed as a part of a degree program in acupuncture or Oriental medicine may be accepted by the acupuncture board if, in the opinion of the acupuncture board, such coursework is substantially equivalent to the required hours of general academic college level coursework;

(4) is a graduate of an acceptable approved acupuncture school;

(5) has taken and passed, within five attempts, each component of the full National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) examination:[.]

(A) If an applicant submits to multiple attempts on a component before and on or after June 1, 2004, the number of attempts shall be combined based on the subject matter tested;

(B) An applicant who is unable to pass each component of the NCCAOM examination, within five attempts, may be allowed to appear before the Licensure Committee of the board to reconsider applicant's ineligibility if the applicant:

(i) is allowed a 6th attempt by NCCAOM;

(ii) passes on the 6th attempt; and

(iii) presents satisfactory evidence to the board as to why the applicant required an additional examination attempt and demonstrates good cause as to why applicant's determination of ineligibility should be reconsidered.

(C) A decision to reconsider an applicant's ineligibility based on subparagraph (B) of this paragraph shall be a discretionary decision of the board;

(6) has taken and passed the CCAOM (Council of Colleges of Acupuncture and Oriental Medicine) Clean Needle Technique (CNT) course and practical examination;

(7) has taken and passed [for applicants who apply for a license on or after September 1, 2007, passes ] a jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the acupuncture profession in this state. The jurisprudence examination shall be developed and administered as follows:

(A) Questions for the JP Exam shall be prepared by agency staff with input from the Acupuncture board and the agency staff shall make arrangements for a facility by which applicants can take the examination.

(B) Applicants must pass the JP exam with a score of 75 or better. [within three attempts, unless the Board allows an additional attempt based upon a showing of good cause. An applicant who is unable to pass the JP exam within three attempts must appear before the Licensure Committee of the board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for licensure. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam.]

(C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals, calculators or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.

(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets[,] shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.

(E) A person who has passed the JP Exam shall not be required to retake the Exam for another or similar license, except as a specific requirement of the board;[.]

(8) is able to communicate in English as demonstrated by one of the following:

(A) passage of the NCCAOM examination taken in English;

(B) passage of the TOEFL (Test of English as a Foreign Language) with a score of at least "intermediate" on the Reading and Listening sections and a score of at least "fair" on the Speaking and Writing sections of the Internet Based Test (iBT®), or a score of 550 or higher on the paper based test (PBT);

(C) passage of the TSE (Test of Spoken English) with a score of 45 or higher;

(D) passage of the TOEIC (Test of English for International Communication) with a score of 500 or higher;

(E) graduation from an acceptable approved school of acupuncture located in the United States or Canada; or

(F) at the discretion of the acupuncture board, passage of any other similar, validated exam testing English competency given by a testing service with results reported directly to the acupuncture board or with results otherwise subject to verification by direct contact between the testing service and the acupuncture board; and[.]

(9) can demonstrate current competence through the active practice of acupuncture as follows:[.]

(A) All applicants for licensure shall provide sufficient documentation to the board that the applicant has, on a full-time basis, actively treated persons, been a student at an acceptable approved acupuncture school, or been on the active teaching faculty of an acceptable approved acupuncture school, within either of the last two years preceding receipt of an application for licensure.

(B) The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year.

(C) Applicants who do not meet the requirements of subparagraphs (A) and (B) of this paragraph may, in the discretion of the executive director or board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions:

(i) limitation of the practice of the applicant to specified components of the practice of acupuncture and/or exclusion of specified components of the practice of acupuncture; or

(ii) remedial education including, but not limited to, enrollment, as a student, and successful completion of 240 hours of clinical practice at an acceptable approved acupuncture school or other structured program approved by the board.[; or]

(10) Alternative License Procedure for Military Service Members, Military Veterans and Military Spouses.

(A) An applicant who is a military service member, military veteran or military spouse may be eligible for alternative demonstrations of competency for certain licensure requirements. Unless specifically allowed in this subsection, an applicant must meet the requirements for licensure as specified in this chapter.

(B) To be eligible, an applicant must be a military service member, military veteran or military spouse and meet one of the following requirements:

(i) holds an active unrestricted acupuncture license issued by another state that has licensing requirements that are substantially equivalent to the requirements for a Texas acupuncture license; or

(ii) within the five years preceding the application date held an acupuncture license in this state.

(C) The executive director may waive any prerequisite to obtaining a license for an applicant described by this subsection after reviewing the applicant's credentials.

(D) Applications for licensure from applicants qualifying under this subsection shall be expedited by the board's licensure division.

(E) Alternative Demonstrations of Competency Allowed. Applicants qualifying under this subsection:

(i) are not required to comply with subsection (c)(1) of this section; and

(ii) notwithstanding the one year expiration in subsection (b)(1)(B) of this section, are allowed an additional 6 months to complete the application prior to it becoming inactive; and

(iii) notwithstanding the 60 day deadline in subsection (b)(1)(G) of this section, may be considered for permanent licensure up to 5 days prior to the board meeting.

(F) Applicants with Military Experience.

(i) For applications filed on or after March 1, 2014, the board shall, with respect to an applicant who is a military service member or military veteran as defined in §183.2 of this chapter, credit verified military service, training, or education toward the licensing requirements, other than an examination requirement, for a license issued by the board.

(ii) This section does not apply to an applicant who:

(I) has had an acupuncture license suspended or revoked by another state or a Canadian province;

(II) holds an acupuncture license issued by another state or a Canadian province that is subject to a restriction, disciplinary order, or probationary order; or

(III) has an unacceptable criminal history.

(b) - (f) (No change.)

§183.19.Acupuncture Advertising.

[(a) License number on print advertising. Except as provided for in subsection (b) of this section, all written advertising communicated by any means or medium which is authorized, procured, promulgated, or used by any acupuncturist shall reflect the current Texas acupuncture license number of the acupuncturist who authorized, procured, promulgated, or used the advertisement and/or is the subject of the advertising. In the event that more than one acupuncturist authorizes, procures, promulgates, uses, and/or is the subject of the advertising, each such acupuncturist shall ensure that any such print medium reflects the current Texas acupuncture license number of the acupuncturist.]

[(b) Exceptions. The following forms of advertising shall be exempt from the provisions of subsection (a) of this section:]

[(1) business cards;]

[(2) office, clinic, or facility signs at the office, clinic, or facility location;]

[(3) single line telephone listings; and,]

[(4) billboard advertising.]

[(c)] [Misleading or deceptive advertising. ] Acupuncturists shall not authorize or use false, misleading, or deceptive advertising, and, in addition, shall not engage in any of the following:

(1) hold themselves out as a physician or surgeon or any combination or derivative of those terms unless also licensed by the medical board as a physician or surgeon as defined under the Medical Practice Act, Tex. Occ. Code Ann. §151.002(a)(13) (relating to Definitions);

(2) use the terms "board certified" unless the advertising also discloses the complete name of the board which conferred the referenced certification; or,

(3) use the terms "board certified" or any similar words or phrases calculated to convey the same meaning if the advertised board certification has expired and has not been renewed at the time the advertising in question was published, broadcast, or otherwise promulgated.

§183.20.Continuing Acupuncture Education.

(a) Purpose. This section is promulgated to promote the health, safety, and welfare of the people of Texas through the establishment of minimum requirements for continuing acupuncture education (CAE) for licensed Texas acupuncturists so as to further enhance their professional skills and knowledge.

(b) Minimum Continuing Acupuncture Education. As a prerequisite to the annual registration of the license of an acupuncturist, the acupuncturist shall complete 17 hours of CAE each year.

(1) The required hours shall be from courses that meet one of the following criteria at the time the hours are taken:

(A) are designated or otherwise approved for credit by the Texas State Board of Acupuncture Examiners based on a review and recommendation of the course content by the Education Committee of the board as described in subsection (n) of this section;

(B) are offered by [approved] providers approved by the Texas State Board of Acupuncture Examiners;

(C) have been approved for CAE credit for a minimum of three years by another state acupuncture board, having first gone through a formal approval process in such state;

(D) approved by the NCCAOM (National Certification Commission for Acupuncture and Oriental Medicine) for professional development activity credit; or

(E) are provided outside of the United States by a provider of continuing acupuncture education that is [are ] acceptable to the Board.

(2) The required CAE hours shall include the following core hours:

(A) At least four [eight] hours shall be in general acupuncture therapies [in order to ensure that a licensee's CAE is comprehensive and that the licensee's overall acupuncture knowledge, skills, and competence are enhanced].

(B) [(3)] At least two [one] of the required hours shall be from a course in ethics and safety.

(C) [(4)] At least three [two] of the required hours shall be in herbology. [More than two hours shall be expected of a licensee whose primary practice includes prescriptions of herbs.]

(D) [(5)] At [Effective for licensees applying for renewal of their licensees on or after November 30, 2010, at] least two hours [one hour] of biomedicine.

(E) [(6)] At least [No more than] two of the required hours shall be in [may be from] courses that primarily relate to [practice enhancement or] business practices or office administration.

(3) The remaining CAE hours may be from other courses approved under paragraph (1) of this subsection, subject to the limitations under paragraphs (5) and (6) of this subsection.

(4) [(7)] Courses may be taught through live lecture, distance learning, or the Internet.

(5) [(8)] No more than a total of eight hours completed under paragraph (1)(D) or (E) of this subsection may be applied to the total hours required each registration period.

(6) At least nine hours applied to the total hours required each registration period must be approved under paragraph (1)(A) - (C) of this subsection.

(c) - (g) (No change.)

(h) Nonrenewal for Insufficient Continuing Acupuncture Education. Unless exempted under the terms of this section, the apparent failure of an acupuncturist to obtain and timely report the 17 hours of continuing education hours as required and provided for in this section shall result in nonrenewal of the license until such time as the acupuncturist obtains and reports the required hours; however, the executive director of the board may issue to such an acupuncturist a temporary license numbered so as to correspond to the non-renewed [nonrenewed] license. Such a temporary license issued pursuant to this subsection may be issued to allow the board to verify the accuracy of information related to the continuing acupuncture education hours of the acupuncturist and to allow the acupuncturist who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.

(i) - (n) (No change.)

(o) Continuing Acupuncture Education Approval Requests. All requests for approval of courses, programs, or activities for purposes of satisfying CAE credit requirements shall be submitted in writing to the Education Committee of the board on a form approved by the board, along with any required fee, and accompanied by information, documents, and materials accurately describing the course, program, or activity, and necessary for verifying compliance with the requirements set forth in subsection (n) of this section. At the discretion of the board or the Education Committee, supplemental information, documents, and materials may be requested as needed to obtain an adequate description of the course, program, or activity and to verify compliance with the requirements set forth in subsection (n) of this section. At the discretion of the board or the Education Committee, inspection of original supporting documents may be required for a determination on an approval request. The Acupuncture Board shall have the authority to conduct random and periodic checks of courses, programs, or activities to ensure that criteria for education approval as set forth in subsection (n) of this section have been met and continue to be met by the education provider. Upon requesting approval of a course, program, or activity, the education provider shall agree to such checks by the Acupuncture Board or its designees, and shall further agree to provide supplemental information, documents, and material describing the course, program, or activity which, in the discretion of the Acupuncture Board, may be needed for approval or continued approval of the course, program, or activity. Failure of an education provider to provide the necessary information, documents, and materials to show compliance with the standards set forth in subsection (n) of this section shall be grounds for denial of CAE approval or rescission [recision] of prior approval in regard to the course, program, or activity.

(p) - (w) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704760

Scott Freshour

Interim Executive Director

Texas Medical Board

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-7016


PART 11. TEXAS BOARD OF NURSING

CHAPTER 213. PRACTICE AND PROCEDURE

22 TAC §213.23

Introduction

The Texas Board of Nursing (Board) proposes amendments to §213.23, concerning Decision of the Board. The amendments are proposed under the authority of the Government Code §§2001.058, 2001.142, 2001.144, 2001.145, and §2001.146 and the Occupations Code §§301.151, 301.469, and 301.459(a) and (a-1), as amended by House Bill (HB) 2950, effective September 1, 2017.

Section by Section Overview

The proposed changes to §213.23(a) make a grammatical change. This change is not considered substantive.

The proposal eliminates the current text in subsections (b) and (c) from the rule. SOAH has adopted its own procedural rules that address the issues contained in these subsections. Further, SOAH recently amended its procedural rules. In an effort to avoid any inconsistency between the rules of SOAH and the rules of the Board, the Board has determined that it is unnecessary to restate any portion of SOAH's rules in §213.23. Parties to a contested case hearing are subject to the procedural rules adopted by SOAH, and the parties should familiarize themselves with the rules of SOAH directly.

Proposed amended §213.23(b) merely re-orders the subsection appropriately and makes a grammatical change. This change is not considered substantive in nature.

The proposed amendments to §213.23(c) and (d) incorporate the statutory changes made by HB 2950. HB 2950, enacted by the 85th Texas Legislature, changes the Board's current procedures for reviewing and adopting proposed findings of fact and conclusions of law following a contested case at the State Office of Administrative Hearings (SOAH). Pursuant to amended §301.459(a) and new (a-1), the Board may no longer change a finding of fact or conclusion of law or vacate or modify an order of an Administrative Law Judge (ALJ) in a contested case matter. Instead, the Board may obtain judicial review of any finding of fact or conclusion of law issued by the ALJ. Further, while the ALJ may make a recommendation regarding an appropriate sanction or action, the Board retains the sole authority and discretion to determine the appropriate action or sanction. These statutory changes affect the procedures currently outlined in §213.23.

Currently, §213.23 permits individuals to submit written briefings to the Board regarding a proposal for decision (PFD) or default dismissal from SOAH. The current rule also permits individuals to request an appearance before the Board to make an oral presentation regarding a PFD or default dismissal. Historically, parties have appeared before the Board to argue for changes to the proposed findings of fact and conclusions of law in a PFD and to address the sanction or action of the Board. Because HB 2950 eliminates the Board's ability to make changes to the proposed findings of fact and conclusions of law in a PFD or default dismissal, the Board has determined that it is unnecessary and impractical to continue this practice. However, consistent with the provisions of the Government Code §2001.062, the proposed amendments continue to permit a party to file written exceptions or briefs with the Board and written responses to exceptions and briefs, and any party wishing to address the proposed findings of fact, conclusions of law, or proposed sanction or Board action may continue do so in this manner.

Consistent with the changes made by HB 2950, the proposed amendments eliminate the current text in §213.23(f) and (g), which reflect the Board's current procedures for considering and amending proposed findings of fact and conclusions of law in a PFD.

The proposed amendments to §213.23(e) re-order the subsection appropriately. This change is not considered substantive in nature.

The proposed amendments to §213.23(f) re-order the subsection appropriately and include a statutory reference for clarification. These changes are not considered substantive in nature.

The proposed amendments to §213.23(g) re-order the subsection appropriately. This change is not considered substantive in nature.

The proposed amendments to §213.23(h) re-order the subsection appropriately and amend a statutory reference for clarification. The Government Code has undergone recent amendment regarding the filing of motions for rehearing and appeals procedures. In an effort to avoid any inconsistency between the Government Code Chapter 2001 and the Board's rules in this regard, the proposed amendments provide a global reference to the controlling statutory chapter. Parties are subject to the requirements of Chapter 2001, as they apply to appellate rights, and parties should familiarize themselves with those provisions directly. As such, the Board has determined that it is unnecessary to restate or incorporate any specific portion of those statutory provisions in §213.23.

Finally, the proposal eliminates the current text in subsection (k), as that text relates to the appellate rights of parties, and proposed amended §213.23(h) addresses those issues more specifically.

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 change in the revenue to state government as a result of the enforcement or administration of 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 rules that are clear and easily understood and comply with the statutory mandates of HB 2950.

There are no anticipated costs of compliance with the proposal. The proposed amendments do not implement new requirements that would result in a cost of compliance to licensees. Further, the Board does not anticipate that licensees will significantly alter their current compliance with the rule based on the proposed amendments. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045. Even if costs were anticipated as a result of the implementation of the proposal, the Board is exempted from compliance with §2001.0045 under the provisions of §2001.0045(c)(9), as the proposal is necessary to implement the statutory mandates of HB 2950.

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 individual, Board regulated entity, or other entity required to comply with the proposed amendments because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create a new regulation; (vi) the proposal does not expand or repeal an existing regulation; (vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and (viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018 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.texas.gov, 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 authority of the Government Code §§2001.058, 2001.142, 2001.144, 2001.145, and §2001.146 and the Occupations Code §§301.151, 301.469, 301.459(a) and (a-1), §301.151, and §301.252(a)(1) and (a-2).

Cross Reference To Statute. The following statutes are affected by this proposal: the Government Code §§2001.058, 2001.142, 2001.144, 2001.145, and §2001.146 and the Occupations Code §§301.151, 301.469, 301.459(a) and (a-1), 301.151, and §301.252(a)(1) and (a-2).

§213.23.Decision of the Board.

(a) Except as to those matters expressly delegated to the executive director for ratification, either the Board or the Eligibility and Disciplinary Committee of the Board, may make final decisions in all matters relating to the granting or denial of a license or permit, discipline, temporary suspension, or administrative and civil penalties. This includes the consideration and resolution of a default dismissal from the State Office of Administrative Hearings pursuant to Texas Government [Tex. Gov't] Code §2001.058(d-1).

[(b) Prior to the issuance of a proposal for decision, a party may submit proposed findings of fact and conclusions of law to the judge. The judge shall issue a ruling on each proposed finding of fact and conclusion of law and shall set forth the specific reason for not adopting a particular proposed finding of fact or conclusion of law.]

[(c) Any party of record who is adversely affected by the proposal for decision of the judge shall have the opportunity to file with the judge exceptions to the proposal for decision and replies to exceptions to the proposal for decision in accordance with 1 TAC §155.507. The proposal for decision may be amended by the judge in accordance with 1 TAC §155.507 without again being served on the parties].

(b) [(d)] A [The] proposal for decision may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with this section, after the expiration of 10 days after the filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

(c) [(e)] Following the issuance of a proposal for decision or default dismissal, parties shall have an opportunity to file written exceptions and/or briefs with the Board. An opportunity shall be given to file a written response to written exceptions and/or briefs. An individual wishing to file written exceptions and/or a brief for the Board's consideration must do so no later than 15 calendar days prior to the date of the next regularly scheduled meeting where the Board or the Eligibility and Disciplinary Committee will deliberate on the proposal for decision or default dismissal. [An individual wishing to make an oral presentation regarding a proposal for decision or default dismissal must request to do so, and file written exceptions and/or a brief, no later than 15 calendar days prior to the date of the next regularly scheduled meeting where the Board or the Eligibility and Disciplinary Committee will deliberate on the proposal for decision or default dismissal.] The Board will not consider [any requests for an oral presentation and/or] any written exceptions and/or briefs submitted in violation of these requirements.

(d) A proposal for decision will be considered by the Board in accordance with Texas Occupations Code §301.459 and Texas Government Code Chapter 2001. Further, the Board may obtain judicial review of any finding of fact or conclusion of law issued by the administrative law judge, as provided by Texas Government Code §2001.058(f)(5).

[(f) It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when, the Board determines:]

[(1) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;]

[(2) that a prior administrative decision on which the judge relied is incorrect or should be changed; or]

[(3) that a technical error in a finding of fact should be changed.]

[(g) If the Board modifies, amends, or changes the recommended proposal for decision or order of the judge, an order shall be prepared reflecting the Board's changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection (f) of this section.]

(e) [(h)] An order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.

(f) [(i)] A copy of the order shall be mailed to all parties and to the party's last known employer as a nurse in accordance with Texas Occupations Code §301.469.

(g) [(j)] The decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where:

(1) the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and

(2) the order states it is final and effective on the date rendered.

[(k) A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection (j) of this section.]

(h) [(l)] Motions for rehearing under this section are controlled by Texas Government Code Chapter 2001 [§2001.145].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704794

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6822


22 TAC §213.27

Introduction

The Texas Board of Nursing (Board) proposes amendments to §213.27, concerning Good Professional Character. The amendments are proposed under the authority of the Occupations Code §301.151 and §301.252(a)(1) and (a-2), as amended by House Bill (HB) 2950, effective September 1, 2017, and are necessary to comply with the adopted recommendations of the Texas Sunset Advisory Commission (Commission) and legislative directives.

Background

The Board was last reviewed by the Commission in 2006-2007 (during the 80th Legislative cycle), and underwent its current review in 2016 - 2017 (during the 85th Legislative cycle). The Commission adopted several recommendations as a result of its review of the Board. One specific recommendation concerned the Board's definition of good professional character. The Commission found that the Board had not defined good professional character through objective criteria, or limited its application to the practice of nursing. The Commission further found that because the subjective criteria of the rule could be interpreted differently by different people, licensees may not receive fair treatment from the Board. As a result, the Commission re-iterated that the Board's definition and application of good professional character should be limited to the practice of nursing and recommended that the Board revise its rule to remove any subjective language or requirements not specifically related to the practice of nursing. Further, the Commission recommended that the Board seek stakeholder input to revise the rules and adopt new rules by March 1, 2018. The Commission's recommendations were codified in HB 2950.

Stakeholder Input

The Board convened and charged its Advisory Committee on Licensure, Eligibility and Discipline (Committee) with reviewing the Commission's recommendations and providing proposed changes to the Board. The Committee met on May 12, 2017; June 9, 2017; August 11, 2017; and September 15, 2017, to review all of the Commission's recommendations regarding discipline and comply with the Board's charge. The Committee reserved the meeting on September 15, 2017, to review and discuss the Board's good professional character rule. However, the Committee was unable to convene a quorum at the Committee's September 15, 2017, meeting, and was unable to make formal recommendations to the Board regarding changes to its good professional character rule. However, the Committee members that were present at the September 15, 2017, meeting, discussed the Board's good professional character rule and provided informal comments to Staff.

The Board reviewed and discussed the Commission's final recommendations, statutory changes made by HB 2950, the Committee's informal comments, and Board Staff's recommendations for changes to its good professional character rule at the October 2017 regularly scheduled Board meeting. The Board approved the proposed changes to the good professional character rule and directed they be published in the Texas Register for public comment.

Overview of Proposed Changes

First, the Board reviewed the statutory changes in HB 2950 (relating to good professional character) to ensure that the proposed changes to the rule comply with the legislature's intent. HB 2950 amended Texas Occupations Code §301.252(a)(1) to require all applicants for licensure to provide evidence of good professional character related to the practice of nursing. Further, HB 2950 added new §301.252(a-2), which provides that an applicant who provides satisfactory evidence that he/she has not committed a violation of Chapter 301 or a rule adopted under Chapter 301 is considered to have good professional character related to the practice of nursing. Further, the new subsection provides that a determination by the Board that an applicant does not have good professional character related to the practice of nursing must be based on a showing by the Board of a clear and rational connection between a violation of Chapter 301 or a rule adopted under Chapter 301 and the applicant's ability to effectively practice nursing.

In order to ensure that the Board's proposed changes comply with the mandates of HB 2950, the Board reviewed the rule to identify and remove tenuous connections or subjective language from the rule that is not specifically related to the practice of nursing. The Board, however, believes that the changes made by HB 2950 still require a showing of good professional character. To that end, the Board has incorporated the statutory parameters of HB 2950 into its definition of good professional character and any ensuing evaluation and determination that an applicant does not have good professional character. The Board further believes that the remaining specified factors in the rule are clearly and rationally connected to the practice of nursing and are not overly subjective in nature to prevent fair and consistent application.

Section by Section Overview

Section 301.252(a)(1) requires applicants to demonstrate good professional character in order to obtain a license to practice nursing in Texas. Consistent with this statutory requirement, proposed amended §213.27(a) requires all individuals seeking to obtain or retain a license or privilege to practice nursing in Texas to have good professional character. If an individual must demonstrate good professional character in order to obtain a license, the Board believes that the individual should also be required to maintain good professional character in order to retain his/her license to practice nursing in Texas. Because individuals may also practice nursing in Texas through a multistate privilege, the proposal also requires these individuals to maintain good professional character to practice nursing in Texas. The Board believes these requirements are consistent with the statutory mandates of HB 2950.

Proposed amended §213.27(b) defines good professional character as the integrated pattern of personal, academic, and occupational behaviors that indicates that an individual is able to consistently conform his/her conduct to the requirements of the Nursing Practice Act (Chapter 301), the Board's rules, and generally accepted standards of nursing practice. Further, the proposed amended subsection re-iterates the statutory changes made by HB 2950 by providing that an individual will be considered to have good professional character if he/she provides satisfactory evidence that he/she has not committed a violation of the Nursing Practice Act or a rule adopted by the Board.

Proposed amended §213.27(c) addresses the factors that must be considered before a determination may be made that an individual does not have good professional character. First, the proposed amended subsection incorporates the new mandate in §301.252 that a determination that an individual does not have good professional character related to the practice of nursing must be based on a showing by the Board of a clear and rational connection between a violation of the Nursing Practice Act or a rule adopted by the Board and the individual's ability to effectively practice nursing.

If an individual has committed a violation of the Nursing Practice Act (Chapter 301) or a rule adopted by the Board under Chapter 301, the statutory changes made by HB 2950 permit an evaluation and determination of the individual's good professional character. In conducting such an evaluation, the proposal requires the Board to consider: whether the individual will be able to practice nursing in an autonomous role with patients/clients, their families, significant others, healthcare professionals, and members of the public who are or who may become physically, emotionally, or financially vulnerable; whether the individual will be able to recognize and honor the interpersonal boundaries appropriate to any therapeutic relationship or health care setting; whether the individual will be able to make appropriate judgments and decisions that could affect patients/clients and/or the public; whether the individual has exhibited an inability to conform his/her behavior to the requirements of the Nursing Practice Act, Board rules and regulations, including §217.11 (relating to Standards of Nursing Practice) and §217.12 (relating to Unprofessional Conduct) of this title, and generally accepted standards of nursing practice; and whether the individual will be able to promptly and fully self-disclose facts, circumstances, events, errors, and omissions, when such disclosure could enhance the health status of patients/clients or the public and/or could protect patients/clients or the public from an unnecessary risk of harm. The Board believes these proposed factors are directly connected to the practice of nursing and are necessary to ensure that the individual is able to practice nursing safely and effectively.

Finally, nurses from other jurisdictions may also practice nursing in Texas through a multistate compact privilege, or through the endorsement process. If a nurse has committed misconduct in another jurisdiction, that misconduct may also constitute a violation of the Texas Nursing Practice Act (Texas Occupations Code §301.452(b)(8)) and may have bearing on a nurse's good professional character. To this end, proposed amended §213.27(d) re-iterates that a certified copy of an order of denial, suspension, or revocation or other action relating to an individual's license or privilege to practice nursing in another jurisdiction or under federal law is conclusive evidence of that action. This is merely a re-statement of the provisions of Texas Occupations Code §301.456. Any additional evaluation of the nurse's good professional character would be determined according to the other provisions of the proposal.

The remainder of the proposal eliminates provisions from the rule text that are inconsistent with the mandates of HB 2950, are unnecessary, obsolete, or redundant.

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 change in the revenue to state government as a result of the enforcement or administration of 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 rules that comply with the Commission's recommendations and the statutory mandates of HB 2950.

There are no anticipated costs of compliance with the proposal. The proposed amendments do not implement new requirements or restrictions, and in some cases, remove existing restrictions from the text of the rule. Further, the Board does not anticipate that licensees will alter their compliance with the rule based on the proposed amendments. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Texas Government Code. §2001.0045. Even if costs were anticipated as a result of the implementation of the proposal, the Board is exempted from compliance with §2001.0045 under the provisions of §2001.0045(c)(9), as the proposal is a direct result of the Commission's recommendations and is necessary to implement the statutory mandates of HB 2950.

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 individual, Board regulated entity, or other entity required to comply with the proposed amendments because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Texas Government Code §2001.0221 and 34 Texas Administrative Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect:

(i) the proposal does not create or eliminate a government program;

(ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal does not create new restrictions or requirements and is not expected to have an effect on existing agency positions;

(iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal does not create new restrictions or requirements and is not expected to have an effect on existing agency positions;

(iv) the proposal does not require an increase or decrease in fees paid to the Board;

(v) the proposal does not create a new regulation;

(vi) the proposal does not expand or repeal an existing regulation, and only limits the existing regulation to the extent that it eliminates subjective criteria from the rule that is not directly and rationally related to the practice of nursing, as is required by the recommendations of the Commission and the statutory mandates of HB 2950;

(vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and

(viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018, 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.texas.gov, 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 authority of the Occupations Code §301.151 and related §301.252(a)(1) and (a-2).

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 301.252(a)(1) requires each applicant for a registered nurse license or a vocational nurse license to submit to the Board a sworn application that demonstrates the applicant's qualifications under Chapter 301, accompanied by evidence that the applicant has good professional character related to the practice of nursing.

Section 301.252(a-1) provides that an applicant who provides satisfactory evidence that the applicant has not committed a violation of Chapter 301 or a rule adopted under Chapter 301 is considered to have good professional character related to the practice of nursing. Further, a determination by the Board that an applicant does not have good professional character related to the practice of nursing must be based on a showing by the Board of a clear and rational connection between a violation of Chapter 301 or a rule adopted under Chapter 301 and the applicant 's ability to effectively practice nursing.

Cross Reference To Statute. The following statutes are affected by this proposal:

Sections 213.27, 301.151, and 301.252(a)(1) and (a-2)

§213.27.Good Professional Character.

(a) Every individual who seeks to practice nursing in Texas must have good professional character related to the practice of nursing. This requirement includes all individuals seeking to obtain or retain a license or privilege to practice nursing in Texas.

(b) The Board defines good professional character as the integrated pattern of personal, academic, and occupational behaviors that [which, in the judgment of the Board,] indicates that an individual is able to consistently conform his/her conduct to the requirements of the Nursing Practice Act, the Board's rules [and regulations], and generally accepted standards of nursing practice. An individual who provides satisfactory evidence that he/she has not committed a violation of the Nursing Practice Act or a rule adopted by the Board is considered to have good professional character related to the practice of nursing. [An individual must maintain good professional character to ensure that he/she is able to consistently act in the best interest of patients/clients and the public. In all cases, it is the individual's burden to provide evidence of good professional character in order to obtain or retain licensure.]

(c) A determination that an individual does not have good professional character related to the practice of nursing must be based on a showing by the Board of a clear and rational connection between a violation of the Nursing Practice Act or a rule adopted by the Board and the individual's ability to effectively practice nursing. When evaluating the rationale connection between the relevant conduct and the ability to effectively practice nursing, the Board will consider the following factors: [When evaluating whether an individual has demonstrated good professional character in an eligibility or disciplinary matter, the Executive Director, the Board, and the State Office of Administrative Hearings (SOAH) shall consider the following factors:]

[(1) the individual's age, education, experience, and behavioral history;]

[(2) whether the individual is able to distinguish right from wrong;]

[(3) whether the individual is able to think and act rationally;]

[(4) whether the individual is able to keep promises and honor obligations]

[(5) whether the individual is accountable for his/her own behavior and/or accepts responsibility for his/her actions;]

(1) [(6)] whether the individual will be [is] able to practice nursing in an autonomous role with patients/clients, their families, significant others, healthcare professionals, and members of the public who are or who may become physically, emotionally, or financially vulnerable;

(2) [(7)] whether the individual will be [is] able to recognize and honor the interpersonal boundaries appropriate to any therapeutic relationship or health care setting;

(3) [(8)] whether the individual will be [is] able to make appropriate judgments and decisions that could affect patients/clients and/or the public;

(4) [(9)] whether the individual has exhibited an inability to conform his/her behavior to the requirements of the Nursing Practice Act, Board rules and regulations, including §217.11 (relating to Standards of Nursing Practice) and §217.12 (relating to Unprofessional Conduct) of this title, and generally accepted standards of nursing practice; and

(5) [(10)] whether the individual will be [is] able to promptly and fully self-disclose facts, circumstances, events, errors, and omissions, when such disclosure could enhance the health status of patients/clients or the public and/or could protect patients/clients or the public from an unnecessary risk of harm.[; and]

[(11) any other behaviors bearing on the individual's honesty, accountability, trustworthiness, reliability, or integrity.]

[(d) The following eligibility and disciplinary sanction policies, as applicable, and §213.28(d) of this chapter (relating to Licensure of Individuals with Criminal History) shall be used by the Executive Director, Board, and SOAH in conjunction with this section when evaluating good professional character in eligibility and disciplinary matters, as applicable]

[(1) Sanctions for Behavior Involving Fraud, Theft, and Deception, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html;]

[(2) Sanctions for Behavior Involving Lying and Falsification, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html;]

[(3) 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; and]

[(4) Sanctions for Substance Use Disorders and Other Alcohol and Drug Related Conduct, approved by the Board and published on August 28, 2015, in the Texas Register and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.]

(d) [(e)] Actions from Other Jurisdictions. A certified copy of the order of the denial, suspension, or revocation or other action relating to an individual's license or privilege to practice nursing in another jurisdiction or under federal law is conclusive evidence of that action.

[(1) A certified copy of an order of adverse action or a judgment from another jurisdiction relating to an individual's license or privilege to practice nursing in that jurisdiction is prima facie evidence of the matters contained in such order or judgment and is conclusive evidence that the disciplined individual committed the misconduct set forth in the order or judgment.]

[(2) Any individual who seeks to obtain or retain a license or privilege to practice nursing in Texas during the period of discipline imposed by a disciplining jurisdiction, or, in the case of revocation or surrender, prior to licensure reinstatement in the disciplining jurisdiction, must provide sufficient evidence that he/she has good professional character.]

[(3) Any individual who seeks to obtain or retain a license or privilege to practice nursing in Texas following the completion of the disciplinary period assessed by a disciplining jurisdiction, or, in the case of revocation or surrender, after the reinstatement of licensure in the disciplining jurisdiction, must provide sufficient evidence that he/she has good professional character.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704786

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6822


22 TAC §213.28

Introduction

The Texas Board of Nursing (Board) proposes the repeal of existing §213.28, concerning Licensure of Individuals with Criminal History. The repeal is being proposed in conjunction with the proposal of new §213.28, which is also being published simultaneously in this issue of the Texas Register. The repeal is being proposed under the authority of the Occupations Code §§301.452(b)(3) and (4) and (d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025 and is necessary to comply with the adopted recommendations of the Texas Sunset Advisory Commission (Commission) and legislative directives.

Background

The Board was last reviewed by the Commission in 2006-2007 (during the 80th Legislative cycle), and underwent its current review in 2016-2017 (during the 85th Legislative cycle). The Commission adopted several recommendations as a result of its review of the Board. One specific recommendation related to the Board's Guidelines for Criminal Conduct (Guidelines). The Commission found that, although the Occupations Code Chapter 53 requires criminal conduct to directly relate to the duties and responsibilities of the regulated profession, the Board's Guidelines, did not, in all cases, clearly consider the factors required under Chapter 53 or establish a direct relationship between the crimes and the practice of nursing.

As a result, the Commission directed the Board to review its Guidelines to ensure that the Guidelines do not expand beyond those crimes that affect actual nursing practice. The Commission further stated that the Board's rules should not include crimes indicating subjective traits like honesty, trustworthiness, or good professional character if those crimes have not occurred in relation to or reasonably correlate to a nurse's job. The Commission also stated that the Board should seek stakeholder input to revise its rules and adopt new rules by March 1, 2018.

Stakeholder Input

The Board convened and charged its Advisory Committee on Licensure, Eligibility and Discipline (Committee) with reviewing the Commission's recommendations and providing proposed changes to the Board. The Committee met on May 12, 2017; June 9, 2017; August 11, 2017; and September 15, 2017, to review all of the Commission's recommendations regarding discipline and comply with the Board's charge. The Committee reviewed and discussed the Board's Guidelines at its May, June, and August meetings. The Committee diligently considered each crime listed in the Guidelines and evaluated its relationship to the practice of nursing, focusing on the guidance provided by the Commission. The Committee then identified the crimes that would most likely have an effect on an individual's ability to practice nursing safely or that would most likely pose a risk of harm to patients, employers, or the public. The Committee was able to reach a consensus and make a recommendation to the Board regarding the majority of the crimes listed in the Guidelines. The Committee recommended removing the following crimes from the Guidelines: felony and misdemeanor bail jumping, misdemeanor burglary of vehicle, misdemeanor criminal trespass, misdemeanor deadly conduct, misdemeanor evading arrest, misdemeanor failure to identify, misdemeanor harassment, misdemeanor harboring runaway child, misdemeanor hindering apprehension or prosecution, felony and misdemeanor hindering secured creditors, and felony and misdemeanor unlawful carrying a weapon. The Committee recommended retaining the remaining crimes in the Guidelines, with the exception of the following crimes that the Committee was unable to reach a consensus or make a recommendation regarding: misdemeanor assault; felony bribery; felony criminal mischief; felony criminal non-support; felony hindering apprehension or prosecution; felony interference with child custody; felony money laundering; misdemeanor violation of protective order; and misdemeanor resisting arrest. The Committee also provided general comments regarding proposed changes to Board Rule §213.28.

The Board reviewed and discussed the Commission's final recommendations, the Committee's recommendations; other state licensing entities' rules and guidelines regarding criminal conduct; and Board Staff's recommendations at the October 2017 regularly scheduled Board meeting. In addition to the crimes recommended by the Committee for removal from the Guidelines, the Board determined that several additional crimes needed to be removed from the Guidelines to comply with the statutory mandates of the Nursing Practice Act (NPA) and the Occupations Code Chapter 53 and the Commission's directives. Further, due to the number and extent of changes to the rule text and the Board's Guidelines, the Board determined that a repeal of the existing rule and Guidelines and the proposal of a new rule and Guidelines was appropriate.

Section by Section Overview. The proposed repeal will repeal §213.28 in its entirety.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed repeal will be in effect, there will be no change in the revenue to state government as a result of the enforcement or administration of the proposal.

Public Benefit/Cost Note. Ms. Thomas has also determined that for each year of the first five years the proposed repeal is in effect, the anticipated public benefit will be the adoption of new rules that comply with the Commission's recommendations and the statutory mandates of the NPA and the Occupations Code Chapter 53.

There are no anticipated costs of compliance with the proposed repeal. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045.

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 individual, Board regulated entity, or other entity required to comply with the proposal because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed repeal will be in effect: (i) the proposed repeal does not create or eliminate a government program; (ii) implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal does is not expected to have an effect on existing agency positions; (iii) implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposed repeal does not require an increase or decrease in fees paid to the Board; (v) the proposed repeal does not create a new regulation; (vi) the proposal does not expand an existing regulation, but it does repeal an existing regulation; however, it is being proposed simultaneously with a proposed new section that addresses the same regulatory purpose; (vii) the proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability; and (viii) the proposed repeal does not have an effect on the state's economy.

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 January 7, 2018, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by email to dusty.johnston@bon.texas.gov, 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 repeal is proposed under the authority of the Occupations Code §§301.452(b)(3) and (4) and (d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025.

Cross Reference to Statute. The following statutes are affected by this proposal: Occupations Code §§301.452(b)(3) and (4) and (d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025.

§213.28.Licensure of Individuals with Criminal History.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704787

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6822


22 TAC §213.28

Introduction

The Texas Board of Nursing (Board) proposes new §213.28, concerning Licensure of Individuals with Criminal History. The new section is being proposed in conjunction with the repeal of existing §213.28, which is also being published simultaneously in this issue of the Texas Register. The new section is being proposed under the authority of the Occupations Code §§301.452(b)(3) and (4) and 301.452(d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025 and is necessary to comply with the adopted recommendations of the Texas Sunset Advisory Commission (Commission) and legislative directives.

Background

The Board was last reviewed by the Commission in 2006-2007 (during the 80th Legislative cycle), and underwent its current review in 2016 - 2017 (during the 85th Legislative cycle). The Commission adopted several recommendations as a result of its review of the Board. One specific recommendation related to the Board's Guidelines for Criminal Conduct (Guidelines). The Commission found that, although the Occupations Code Chapter 53 requires criminal conduct to directly relate to the duties and responsibilities of the regulated profession, the Board's Guidelines, did not, in all cases, clearly consider the factors required under Chapter 53 or establish a direct relationship between the crimes and the practice of nursing.

As a result, the Commission directed the Board to review its Guidelines to ensure that the Guidelines do not expand beyond those crimes that affect actual nursing practice. The Commission further stated that the Board's rules should not include crimes indicating subjective traits like honesty, trustworthiness, or good professional character if those crimes have not occurred in relation to or reasonably correlate to a nurse's job. The Commission also stated that the Board should seek stakeholder input to revise its rules and adopt new rules by March 1, 2018.

Stakeholder Input

The Board convened and charged its Advisory Committee on Licensure, Eligibility and Discipline (Committee) with reviewing the Commission's recommendations and providing proposed changes to the Board. The Committee met on May 12, 2017; June 9, 2017; August 11, 2017; and September 15, 2017, to review all of the Commission's recommendations regarding discipline and comply with the Board's charge. The Committee reviewed and discussed the Board's Guidelines at its May, June, and August meetings. The Committee diligently considered each crime listed in the Guidelines and evaluated its relationship to the practice of nursing, focusing on the guidance provided by the Commission. The Committee then identified the crimes that would most likely have an effect on an individual's ability to practice nursing safely or that would most likely pose a risk of harm to patients, employers, or the public. The Committee was able to reach a consensus and make a recommendation to the Board regarding the majority of the crimes listed in the Guidelines. The Committee recommended removing the following crimes from the Guidelines: felony and misdemeanor bail jumping, misdemeanor burglary of vehicle, misdemeanor criminal trespass, misdemeanor deadly conduct, misdemeanor evading arrest, misdemeanor failure to identify, misdemeanor harassment, misdemeanor harboring runaway child, misdemeanor hindering apprehension or prosecution, felony and misdemeanor hindering secured creditors, and felony and misdemeanor unlawful carrying a weapon. The Committee recommended retaining the remaining crimes in the Guidelines, with the exception of the following crimes that the Committee was unable to reach a consensus or make a recommendation regarding: misdemeanor assault; felony bribery; felony criminal mischief; felony criminal non- support; felony hindering apprehension or prosecution; felony interference with child custody; felony money laundering; misdemeanor violation of protective order; and misdemeanor resisting arrest. The Committee also provided general comments regarding proposed changes to Board Rule 213.28.

The Board reviewed and discussed the Commission's final recommendations, the Committee's recommendations; other state licensing entities' rules and guidelines regarding criminal conduct; and Board Staff's recommendations at the October 2017 regularly scheduled Board meeting. In addition to the crimes recommended by the Committee for removal from the Guidelines, the Board determined that several additional crimes needed to be removed from the Guidelines to comply with the statutory mandates of the Nursing Practice Act (NPA) and the Occupations Code Chapter 53 and the Commission's directives. Further, due to the number and extent of changes to the rule text and the Board's Guidelines, the Board determined that a repeal of the existing rule and Guidelines and the proposal of a new rule and Guidelines was appropriate.

Section by Section Overview

Proposed §213.28(a) sets out the purpose and applicability of the new section, which is similar to the text of the existing rule. The proposed new section also implements the requirements of the Occupations Code §53.025. Under §53.025, the Board is required to issue guidelines stating the reasons why a particular crime is considered to relate to a nursing license and any other criteria that affects the licensing decisions of the Board. The remaining subsections of the rule specify the Board's rationale in this regard.

Proposed §213.28(b) specifies the Board's jurisdiction over criminal conduct. Pursuant to the Occupations Code §301.452(b)(3) and §53.021, an individual is subject to denial of licensure or to disciplinary action for a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony that is directly related to the practice of nursing or for a misdemeanor involving moral turpitude that is directly related to the practice of nursing. The proposed new subsection further specifies that the Board will only consider those crimes that have been adjudicated through agreement or judicial order by a state or federal criminal justice system, and that the Board will not re-litigate the underlying factual basis for the agreement or judicial order when considering the effect of the criminal conduct on an individual's licensure status. This rule text is similar to that already specified in the Board's current Guidelines.

Proposed new §213.28(c) includes the Board's revised Guidelines and specifies that the crimes listed in the Guidelines are considered to be directly related to the practice of nursing by the Board. The proposed new subsection also explains how the Board intends to utilize the Guidelines in its licensing decisions. Due to the variance among state and federal laws, it is virtually impossible to identify all of the crimes that may affect an individual applicant. As a result, the Guidelines reflect the most common or well-known crimes, and the Board expects the vast majority of an individual's criminal history that is reviewed by the Board to fall within those Guidelines. However, the Board does not consider the Guidelines to be an exhaustive listing, and they do not prohibit the Board from considering an offense not specifically listed in the Guidelines. In a matter involving an offense that is not specifically listed in the Guidelines, such as a violation of another state's law, federal law, or the Uniform Code of Military Justice, the Board will consider the conduct by comparing the offense to the crime listed in the Guidelines that contains substantially similar elements. In all situations, however, the offense must meet the requirements of proposed new subsection (b) to be actionable by the Board. This overall approach is also consistent with other licensing entities' rules regarding the evaluation of an individual's past criminal conduct and contains text that is similar to that already specified in the Board's current Guidelines.

Proposed new §213.28(d) describes how the crimes that are listed in the Board's Guidelines are directly related to the practice of nursing. The subsection includes the Board's rationale for several categories of crimes: those involving fraud or theft; those involving sexual misconduct; those involving lying, falsification, and deception; those involving alcohol and drugs; and those involving violence or threatening behavior. In compliance with the Commission's directives and the statutory mandates of the Occupations Code Chapter 53, the Board has specified how each category of crime relates directly to the practice of nursing and identifies the effect it may have on an employer, patient, or member of the public. Based on the Committee's recommendations and consideration of the Commission's directives, the Board has considerably narrowed the number of crimes included in its Guidelines in an effort to ensure that those remaining are only those that have a direct, rational connection to the practice of nursing and affect actual nursing practice.

In the same vein as proposed new §213.28(d), proposed new §213.28(e) discusses additional factors that the Board has considered when determining the connection between the crimes listed in the Guidelines and the practice of nursing. Consistent with the statutory mandates of the Occupations Code §53.022, the Board has considered the nature and seriousness of each of the crimes listed in the Guidelines; the relationship of the crime to the purposes for requiring a license to engage in nursing; the extent to which a license to practice nursing might offer an opportunity to engage in further criminal activity of the same type as that in which the individual previously was involved; and the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities associated with the practice of nursing. The Board has carefully considered each crime listed in the Guidelines and determined that these crimes raise concerns about the propensity of the individual to repeat similar misconduct in the workplace, if provided the opportunity, and that such similar misconduct in the workplace would place vulnerable individuals at risk of exploitation or victimization. As a result, if an individual has committed a crime listed in the Guidelines, the Board will evaluate that conduct to determine if disciplinary action is warranted.

Proposed new §213.28(f) specifies additional conditions under which a crime will be considered to be directly related to the practice of nursing. Specifically, an act will be considered to be directly related to the practice of nursing if the act arose out of the practice of vocational, professional, or advanced practice nursing, as those terms are defined by the NPA; involves a current or former patient; arose out of the practice location of the nurse; involves a healthcare professional with whom the nurse has had a professional relationship; or constitutes a criminal violation of the NPA or another statute regulating another profession in the healing arts that also applies to the individual. These conditions are also consistent with other licensing entities' rules regarding the evaluation of an individual's criminal conduct.

Proposed new §213.28(g) describes how an individual's past criminal conduct will be evaluated by the Board. First, the Board recognizes that an individual may make a mistake, learn from it, and not repeat it in the nursing practice setting. As such, not all criminal conduct will result in disciplinary action, as each case will be evaluated on its own merit to determine if a sanction is warranted. If a sanction is warranted, the Board will utilize the schedule of sanctions set forth in §213.33(e) (relating to Factors Considered for Imposition of Penalties/Sanctions) of this chapter to determine the appropriate level of sanction for each individual case. At a minimum, however, an individual will be required to successfully complete the terms of his/her criminal probation and provide evidence of successful completion to the Board. Further, if an individual's criminal behavior is due to, or associated with, a substance use disorder or a mental health condition, evidence of ongoing sobriety, effective clinical management, and/or appropriate ongoing treatment may be required. And, if an individuals' criminal history implicates his/her current fitness to practice, the individual may also be required to meet the requirements of §213.29 (relating to Fitness to Practice) to ensure he/she is safe to practice nursing.

Proposed new §213.28(h) specifies the factors that may be considered by the Board when determining the appropriate sanction, if any, in an eligibility or disciplinary matter involving criminal conduct. These factors are consistent with those required by the Occupations Code §53.023 and include: the nature, seriousness, and extent of the individual's past criminal activity; the age of the individual when the crime was committed; the amount of time that has elapsed since the individual's last criminal activity; the conduct and work activity of the individual before and after the criminal activity; evidence of the individual's rehabilitation or rehabilitative effort while incarcerated or after release; other evidence of the individual's fitness, including letters of recommendation from prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the individual; the sheriff or chief of police in the community where the individual resides; and any other individual in contact with the convicted individual; a record of steady employment; support of the individual's dependents; a record of good conduct; successful completion of probation/community supervision or early release from probation/community supervision; payment of all outstanding court costs, supervision fees, fines, and restitution ordered; the actual damages, physical or otherwise, resulting from the criminal activity; the results of an evaluation performed pursuant to the Occupations Code §301.4521 and §213.33(k) and (l) of this chapter; evidence of remorse and having learned from past mistakes; evidence of current support structures that will prevent future criminal activity; evidence of current ability to practice nursing in accordance with the NPA, Board rules, generally accepted standards of nursing; and other laws that affect nursing practice; and any other matter that justice requires.

Proposed new §213.28(i) reiterates that the Board may require or request an evaluation to assist it in its determination regarding an individual's past criminal conduct. Pursuant to Texas Occupations Code §301.4521 and §213.33(k) and (l) of this chapter, the Board may request or require an individual to undergo an evaluation with a Board-approved evaluator to better determine whether the individual is safe to practice nursing and is able to comply with the NPA, Board rules, and generally accepted standards of nursing. Further, if an individual's criminal behavior is due to, or associated with, a substance use disorder or a mental health condition, evidence of ongoing sobriety, effective clinical management, and/or appropriate ongoing treatment may also be required. This subsection contains text that is similar to that already specified in the Board's current rule.

Proposed new §213.28(j) specifies how the Board will review criminal behavior that is determined to be a youthful indiscretion. The Board will evaluate the following factors when reviewing criminal behavior to determine if it may be classified as a youthful indiscretion: the offense was not classified as a felony; absence of criminal plan or premeditation; presence of peer pressure or other contributing influences; absence of adult supervision or guidance; evidence of immature thought process/judgment at the time of the activity; evidence of remorse; evidence of restitution to both victim and community; evidence of current maturity and personal accountability; absence of subsequent criminal conduct; evidence of having learned from past mistakes; evidence of current support structures that will prevent future criminal activity; and evidence of current ability to practice nursing in accordance with the NPA, Board rules, generally accepted standards of nursing, and other laws that affect nursing practice. If criminal behavior is deemed to be a youthful indiscretion, a sanction will not be imposed. This subsection contains text that is similar to that already specified in the Board's current rule.

Proposed new §213.28(k) reiterates several statutory bars to licensure. First, under the Occupations Code §301.4535, the Board is required under §301.4535(b) to deny an individual initial licensure or licensure renewal and to revoke an individual's nursing license or privilege to practice nursing in Texas upon a final conviction or a plea of guilty or nolo contendere for a criminal offense specified in §301.4535(a). Further, an individual is not eligible for initial licensure or licensure endorsement in Texas or for licensure reinstatement before the fifth anniversary of the date the individual successfully completed and was dismissed from community supervision or parole for an offense specified in §301.4535(a). Second, pursuant to Texas Occupations Code §53.021(b), an individual's license or multistate licensure privilege to practice nursing in Texas will be revoked by operation of law upon the individual's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision. This subsection contains text that is similar to that already specified in the Board's current rule.

Proposed new §213.28(l) explains how the Board will utilize an individual's arrest information. The fact that an individual has been arrested will not be used as grounds for sanction. The Board may, however, utilize evidence ascertained through the Board's own investigation from information contained in the arrest record if the underlying conduct suggests actions violating the NPA or Board rules. This subsection is consistent with the Occupations Code §301.452(d) and contains text that is similar to that already specified in the Board's current rule.

Proposed new §213.28(m) provides that the Executive Director is authorized to close an eligibility file when the individual seeking licensure has failed to respond to a request for information, a proposed eligibility order, or denial of licensure within 60 days of the request for information, proposed eligibility order, or denial. This subsection contains text that is similar to that already specified in the Board's current rule.

Proposed new §213.28(n) explains how an individual's criminal history may affect his/her ability to hold a multistate licensure privilege to practice nursing in Texas. Pursuant to the Occupations Code §304.0015, Article III, (c)(7), which was added by House Bill 2950, enacted by the 85th Texas Legislature, an individual will not be eligible to hold a multistate licensure privilege if the individual has been convicted or found guilty, or has entered into an agreed disposition, of a felony offense under applicable state or federal criminal law. Further, pursuant to (c)(8), an individual will not be eligible to hold a multistate licensure privilege if the individual has been convicted or found guilty, or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing, as determined on a case-by-case basis by the Board.

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 change in the revenue to state government as a result of the enforcement or administration of 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 benefit will be the adoption of rules that comply with the Commission's recommendations and the statutory mandates of the NPA and the Occupations Code Chapter 53.

There are no anticipated costs of compliance with the proposal. The proposal does not implement new requirements, and in some cases, removes existing restrictions. Further, although a new section is being proposed for adoption, many of the provisions in the new section are contained within the Board's current rule text, and the Board does not anticipate a marked change in licensee compliance with the new section. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Texas Government Code. §2001.0045. Even if costs were anticipated as a result of the implementation of the proposal, the Board is exempted from compliance with §2001.0045 under the provisions of §2001.0045(c)(9), as the proposal is a direct result of the Commission's recommendations and is necessary to implement the statutory mandates of HB 2950.

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 individual, Board regulated entity, or other entity required to comply with the proposal because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Texas Government Code §2001.0221 and 34 Texas Administrative Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed new section will be in effect:

(i) the proposal does not create or eliminate a government program;

(ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal does is not expected to have an effect on existing agency positions;

(iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions;

(iv) the proposal does not require an increase or decrease in fees paid to the Board;

(v) the proposal does not create a new regulation since it essentially amends a regulation that currently exists and is being adopted simultaneously with the current regulations' repeal;

(vi) the proposal does not expand or repeal an existing regulation;

(vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and

(viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018, 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.texas.gov, 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 proposal is proposed under the authority of the Occupations Code §§301.452(b)(3) and (4) and (d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025.

Cross Reference To Statute. The following statutes are affected by this proposal: Occupations Code §§301.452(b)(3) and (4) and (d); 301.151; 301.1545; 301.4535; 304.0015, Article III, (c)(7) and (8); 53.021; 53.022; 53.023; and 53.025.

§213.28.Licensure of Individuals with Criminal History.

(a) Purpose and Applicability. This section establishes the criteria utilized by the Board in determining the effect of criminal history on nursing licensure and eligibility for nursing licensure and implements the requirements of Texas Occupations Code §53.025. This section applies to all individuals seeking to obtain or retain a license or multistate licensure privilege to practice nursing in Texas.

(b) An individual is subject to denial of licensure or to disciplinary action for a conviction for, or placement on deferred adjudication community supervision or deferred disposition for, a felony that is directly related to the practice of nursing or for a misdemeanor involving moral turpitude that is directly related to the practice of nursing (collectively referred to as crimes hereafter). This section applies to crimes that have been adjudicated through agreement or judicial order by a state or federal criminal justice system, without re-litigation of the underlying factual basis for the agreement or judicial order.

(c) The Board considers the crimes listed in the attached Criminal Guidelines (Guidelines) to be directly related to the practice of nursing. The Guidelines reflect the most common or well known crimes. The vast majority of an individual's criminal history that is reviewed by the Board will fall within the Guidelines. However, the Guidelines are not intended to be an exhaustive listing, and they do not prohibit the Board from considering an offense not specifically listed in the Guidelines. In matters involving an offense that is not specifically listed in the Guidelines, such as a violation of another state's law, federal law, or the Uniform Code of Military Justice, a determination shall be made by comparing that offense to the crime listed in the Guidelines that contains substantially similar elements. The offense must meet the requirements of subsection (b) of this section to be actionable.

Figure: 22 TAC §213.28(c) (.pdf)

(d) The Board has determined that the crimes listed in the Guidelines in subsection (c) of this section are directly related to the practice of nursing for the following reasons.

(1) Nursing is a unique profession. Nurses practice autonomously in a wide variety of settings and provide care to individuals who are, by virtue of their illness or injury, physically, emotionally, and financially vulnerable. These individuals include the elderly; children; individuals with mental disorders; sedated and anesthetized patients; individuals with mental or cognitive disorders; and disabled and immobilized individuals. Nurses that engage in criminal conduct potentially place patients, healthcare employers, and the public at future risk of harm.

(2) Crimes involving fraud or theft. Nurses often have unfettered access to individuals' privileged information, financial information, and valuables, including medications, money, jewelry, credit cards/checkbook, and sentimental items. Nurses also provide around the clock care, working night and weekend shifts at hospitals, long term care facilities, nursing homes, assisted living facilities, and in home health and home-like settings, where there is often no direct supervision of the nurse. Patients in these settings are particularly vulnerable to the unethical, deceitful, and illegal conduct of a nurse. When a nurse has engaged in criminal behavior involving fraud or theft in the past, the Board is mindful that similar misconduct may be repeated in these nursing settings, thereby placing patients, healthcare employers, and the public at risk.

(3) Crimes involving sexual misconduct. Nurses also frequently provide care to partially clothed or fully undressed individuals, who are particularly vulnerable to exploitation. Due to the intimate nature of nursing care, professional boundaries in the nurse-patient relationship are extremely important. When a nurse has engaged in criminal behavior involving any type of sexual misconduct in the past, the Board is mindful that similar misconduct may be repeated in nursing settings. Such conduct may involve touching intimate body parts when the touch is not necessary for care, voyeurism, exposure of body parts when not necessary, and surreptitious touching. As such, the Board considers crimes involving any type of sexual misconduct to be highly relevant to an individual's ability to provide safe nursing care..

(4) Crimes involving lying, falsification, and deception. Nurses are expected to accurately and honestly report and record information in a variety of sources, such as medical records, pharmacy records, billing records, nursing notes, and plans of care, as well as report errors in their own nursing practice. When a nurse has engaged in criminal behavior involving lying, falsification, or deceptive conduct, the Board is mindful that similar misconduct may be repeated in nursing settings, thereby placing patients, healthcare employers, and the public at risk.

(5) Crimes involving drugs and alcohol.. Nurses have a duty to their patients to provide safe, effective nursing care and to be fit to practice. Nurses who have a substance use disorder may exhibit impairment in both cognitive and motor functioning. A nurse affected by a substance use disorder may be unable to accurately assess patients, make appropriate judgments, or intervene in a timely and appropriate manner. This danger may be heightened when the nurse works in an autonomous setting where other healthcare providers are not present to provide interventions for the patient. As such, the Board considers crimes related to the use or possession of drugs or alcohol to be highly relevant to a nurse's fitness to practice.

(6) Crimes involving violence or threatening behavior. Nurses provide care to the most vulnerable of populations, including individuals who often have no voice of their own and cannot advocate for themselves. Further, patients are dependent on the nurse-patient relationship for their daily care. When a nurse has engaged in violent or threatening criminal behavior in the past, the Board is mindful that patients may be at risk for similar behavior in a healthcare setting. As such, the Board considers crimes involving violence and threatening behavior to be highly relevant to a nurse's fitness to practice.

(e) The Board has considered the nature and seriousness of each of the crimes listed in the Guidelines in subsection (c) of this section, the relationship of the crime to the purposes for requiring a license to engage in nursing; the extent to which a license to practice nursing might offer an opportunity to engage in further criminal activity of the same type as that in which the individual previously was involved; and the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities associated with the practice of nursing. The Board has determined that each crime listed in the Guidelines in subsection (c) of this section raises concerns about the propensity of the individual to repeat similar misconduct in the workplace, if provided the opportunity. The Board has also determined that similar misconduct in the workplace would place vulnerable individuals at risk of exploitation or victimization. As a result, if an individual has committed a crime listed in the Guidelines in subsection (c) of this section, the Board will evaluate that conduct to determine if disciplinary action is warranted.

(f) Additionally, a crime will be considered to be directly related to the practice of nursing if the act:

(1) arose out of the practice of vocational, professional, or advanced practice nursing, as those terms are defined by the Nursing Practice Act (NPA);

(2) involves a current or former patient;

(3) arose out of the practice location of the nurse;

(4) involves a healthcare professional with whom the nurse has had a professional relationship; or

(5) constitutes a criminal violation of the NPA or another statute regulating another profession in the healing arts that also applies to the individual.

(g) Sanction. Not all criminal conduct will result in a sanction. The Board recognizes that an individual may make a mistake, learn from it, and not repeat it in the nursing practice setting. As such, each case will be evaluated on its own merits to determine if a sanction is warranted. If multiple crimes are present in a single case, a more severe sanction may be considered by the Board pursuant to Texas Occupations Code §301.4531. If a sanction is warranted, the Board will utilize the schedule of sanctions set forth in §213.33(e) (relating to Factors Considered for Imposition of Penalties//Sanctions) of this chapter. At a minimum, an individual will be required to successfully complete the terms of his/her criminal probation and provide evidence of successful completion to the Board. If an individual's criminal behavior is due to, or associated with, a substance use disorder or a mental health condition, evidence of ongoing sobriety, effective clinical management, and/or appropriate ongoing treatment may be required. Further, if an individuals' criminal history implicates his/her current fitness to practice, the individual may also be required to meet the requirements of §213.29 (relating to Fitness to Practice) to ensure he/she is safe to practice nursing.

(h) Factors. The following factors will be considered when determining the appropriate sanction, if any, in eligibility and disciplinary matters involving criminal conduct:

(1) the nature, seriousness, and extent of the individual's past criminal activity;

(2) the age of the individual when the crime was committed;

(3) the amount of time that has elapsed since the individual's last criminal activity;

(4) the conduct and work activity of the individual before and after the criminal activity;

(5) evidence of the individual's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) other evidence of the individual's fitness, including letters of recommendation from prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the individual; the sheriff or chief of police in the community where the individual resides; and any other individual in contact with the convicted individual;

(7) a record of steady employment;

(8) support of the individual's dependents;

(9) a record of good conduct;

(10) successful completion of probation/community supervision or early release from probation/community supervision;

(11) payment of all outstanding court costs, supervision fees, fines, and restitution ordered;

(12) the actual damages, physical or otherwise, resulting from the criminal activity;

(13) the results of an evaluation performed pursuant to Texas Occupations Code §301.4521 and §213.33(k) and (l) of this chapter;

(14) evidence of remorse and having learned from past mistakes;

(15) evidence of current support structures that will prevent future criminal activity;

(16) evidence of current ability to practice nursing in accordance with the NPA, Board rules, generally accepted standards of nursing; and other laws that affect nursing practice; and

(16) any other matter that justice requires.

(i) Evaluations. Pursuant to Texas Occupations Code §301.4521 and §213.33(k) and (l) of this chapter, the Board may request or require an individual to undergo an evaluation with a Board-approved evaluator to better determine whether the individual is safe to practice nursing and is able to comply with the NPA, Board rules, and generally accepted standards of nursing. If an individual's criminal behavior is due to, or associated with, a substance use disorder or a mental health condition, evidence of ongoing sobriety, effective clinical management, and/or appropriate ongoing treatment may also be required.

(j) Youthful Indiscretions. Some criminal behavior may be deemed a youthful indiscretion under this paragraph. In that event, a sanction will not be imposed. The following criteria will be considered in making such a determination:

(1) the offense was not classified as a felony;

(2) absence of criminal plan or premeditation;

(3) presence of peer pressure or other contributing influences;

(4) absence of adult supervision or guidance;

(5) evidence of immature thought process/judgment at the time of the activity;

(6) evidence of remorse;

(7) evidence of restitution to both victim and community;

(8) evidence of current maturity and personal accountability;

(9) absence of subsequent criminal conduct;

(10) evidence of having learned from past mistakes;

(11) evidence of current support structures that will prevent future criminal activity; and

(12) evidence of current ability to practice nursing in accordance with the NPA, Board rules, generally accepted standards of nursing, and other laws that affect nursing practice.

(k) Bars to Licensure.

(1) Texas Occupations Code §301.4535. The Board is required under Texas Occupations Code §301.4535(b) to deny an individual initial licensure or licensure renewal and to revoke an individual's nursing license or privilege to practice nursing in Texas upon a final conviction or a plea of guilty or nolo contendere for a criminal offense specified in §301.4535(a). Further, an individual is not eligible for initial licensure or licensure endorsement in Texas or for licensure reinstatement before the fifth anniversary of the date the individual successfully completed and was dismissed from community supervision or parole for an offense specified in §301.4535(a).

(2) Imprisonment. Pursuant to Texas Occupations Code §53.021(b), an individual's license or multistate licensure privilege to practice nursing in Texas will be revoked by operation of law upon the individual's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

(l) Arrests. The fact that an individual has been arrested will not be used as grounds for sanction. If, however, evidence ascertained through the Board's own investigation from information contained in the arrest record regarding the underlying conduct suggests actions violating the NPA or Board rules, the Board may consider such evidence.

(m) The Executive Director is authorized to close an eligibility file when the individual seeking licensure has failed to respond to a request for information, a proposed eligibility order, or denial of licensure within 60 days of the request for information, proposed eligibility order, or denial.

(n) Pursuant to the Nurse Licensure Compact, Texas Occupations Code §304.0015, Article III, (c)(7), an individual will not be eligible to hold a multistate licensure privilege if the individual has been convicted or found guilty, or has entered into an agreed disposition, of a felony offense under applicable state or federal criminal law. Further, pursuant to the Nurse Licensure Compact, Texas Occupations Code §304.0015, Article III, (c)(8), an individual will not be eligible to hold a multistate licensure privilege if the individual has been convicted or found guilty, or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing, as determined on a case-by-case basis by the Board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704788

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6822


CHAPTER 214. VOCATIONAL NURSING EDUCATION

22 TAC §214.9

Introduction

The Texas Board of Nursing (Board) proposes amendments to §214.9, concerning Program of Study. The amendments are proposed under the authority of Texas Occupations Code §301.151 and §301.157 and are necessary to enhance the flexibility of vocational nursing programs.

Background

The Advisory Committee on Education (ACE) is a standing advisory committee of the Board and advises the Board on education and practice issues that have or may have an impact on the regulation of nursing education in Texas. The Board charged ACE at its July 2017 meeting with studying possible rule changes related to required hours for instruction and clinical practice in Vocational Nursing Education (VN) programs and recommending any necessary changes.

At the September 25, 2017, meeting of ACE, ACE voted to recommend amending §214.9 to remove the required minimum supervised clinical hour requirement for vocational nursing programs from the rule. ACE based its recommendation on the following factors.

First, a review of other state boards of nursing showed that 66% have no minimum number of hours for vocational nursing educational programs and 62% have no minimum clinical hour requirement. Second, the majority of states have no minimum required hours for supervised clinical practice in their nursing educational programs. ACE found that there was no correlation between pass rates on the National Council Licensure Examination for Practical Nurses (NCLEX-PN® Examination) and having a minimum supervised clinical practice hour requirement in rule. Further, many states without clinical practice hour requirements had higher pass rates on the National Council Licensure Examination for Practical Nurses (NCLEX-PN® Examination).

In addition to these factors, ACE also noted that eliminating a prescribed number of hours from the rule could allow additional innovation in VN programs and could allow VN programs to structure their programs in a way that they believe is best suited to producing competent graduates. ACE also noted that the proposed amendments may reduce competition for clinical practice areas for students, which may lead to a higher quality clinical educational experience.

Section by Section Overview

The current rule requires a minimum of one thousand three hundred and ninety-eight (1,398) clock hours for a VN program, which includes five hundred and fifty-eight (558) hours for classroom instruction and eight hundred and forty (840) hours for clinical practice. The rule also currently defines clinical hours for use in calculating those hours to meet the threshold of eight hundred and forty (840) clinical hours. The proposed amendments remove the requirement of eight hundred and forty (840) clinical hours from the rule and remove the mechanism of calculating those hours. Under the proposal, the hourly requirement is replaced with a suggested ratio of contact hours for classroom and clinical learning experiences. The suggested ratio is one (1) contact hour of didactic to three (3) contact hours of related clinical learning experiences.

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 change in the revenue to state government as a result of the enforcement or administration of 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 additional flexibility in VN education programs to design their program to best prepare their students to pass the National Council Licensure Examination for Practical Nurses (NCLEX-PN® Examination) and prepare safe practitioners in the state of Texas.

There are no anticipated costs of compliance with the proposal, as the proposed amendments do not implement new requirements or restrictions. Rather, the amendments remove existing restrictions from VN education programs by allowing them to design their program in the way that they believe is most efficient and best prepares their students. Further, this amendment does not require any departure from the current curriculum for nursing schools. This amendment merely offers an additional option for nursing education programs who choose to exercise it. As there are no anticipated required costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045.

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 individual, Board regulated entity, or other entity required to comply with the proposed amendments because as the Board has not added any new requirements with which programs must comply. In fact, under these amendments, programs do not have to make any changes to their current structure of clinical and didactic education. The proposal merely provides an option for schools who choose to do so. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create a new regulation; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not increase or decrease the number of individuals subject to the rule's applicability; and (viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018 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.texas.gov, 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 authority of the Occupations Code §301.151 and related §301.157.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 301.157(b)(3) authorizes the Board to prescribe other rules as necessary to conduct approved schools of nursing and educational programs for the preparation of registered nurses or vocational nurses.

Cross Reference To Statute. The following statutes are affected by this proposal:

Rule: §214.9

Statute: §301.151 and §301.157

§214.9.Program of Study.

(a) The program of study shall include both didactic and clinical learning experiences and shall be:

(1) at least the equivalent of one (1) academic year and shall not exceed two (2) calendar years [a minimum of 1,398 clock hours: 558 hours for classroom instruction and 840 hours for clinical practice];

(2) - (9) (No change.)

(b) (No change.)

(c) Instruction shall include, but not be limited to: organized student/faculty interactive learning activities, formal lecture, audiovisual presentations, nursing skills laboratory instruction and demonstration, simulated laboratory instruction, and faculty-supervised, hands-on patient care clinical learning experiences.

(1) - (2) (No change.)

(3) Hours in clinical learning experiences shall be sufficient to meet program of study requirements [with a minimum of 840 hours]. There shall be a rationale for the ratio of contact hours assigned to classroom and clinical learning experiences. The suggested ratio is one (1) contact hour of didactic to three (3) contact hours of related clinical learning experiences.

(4) Clinical practice learning experiences shall include actual hours of practice in nursing skills and computer laboratories; simulated clinical experiences; faculty supervised hands-on clinical care; clinical conferences; and observation experiences [for the purpose of calculating the hours for clinical learning experiences in the curriculum]. Observation experiences provide supplemental learning experiences that meet specific learning objectives.

(5) - (9) (No change.)

(d) - (m) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704797

John Vanderford

Assistant General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6879


CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.2

Introduction

The Texas Board of Nursing (Board) proposes amendments to §217.2, concerning Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories or Possessions.

At the April 2017 quarterly Board meeting, the Board charged the Advisory Committee on Education (ACE) to: (1) advise on the development of rules to define substantially equivalent education standards for the purpose of ensuring out-of-state nursing education programs are substantially equivalent to Board standards; and (2) to advise on the development of rules to provide a clear pathway to initial licensure for graduates of out-of-state programs the Board determines are not substantially equivalent to Board standards for Texas programs. These charges were the result of the Sunset Advisory Commission's (Commission) adopted recommendations, which were codified in House Bill (HB) 2950, effective September 1, 2017.

ACE met on June 22, 2017, July 25, 2017, and September 25, 2017, to consider the Board's charges. ACE discussed and adopted recommendations for the definition of a substantially equivalent program for both vocational and professional nursing programs. ACE members also discussed and adopted recommendations for a pathway to licensure for applicants who do not meet those definitions.

In reaching its recommendations, ACE discussed several potential pathways to licensure. First, ACE considered requiring an applicant to complete courses at an approved Texas program to fill in any gaps of education an applicant may be missing that would prevent him/her from having a substantially equivalent program. Ultimately, ACE disregarded this as a viable option because it would likely be too arduous for any applicant graduating from a clinical competency assessment program which does not have integrated supervised clinical experiences. In such a situation, the individual would likely be required to complete an entire nursing program, since in Texas, the didactic and clinical portions of the program are integrated.

ACE then considered two other options, which it ultimately recommended to the Board. First, if an applicant is a graduate of a clinical competency assessment program, the applicant may complete precepted hours in an employment setting. Second, the applicant may complete a course at Texas program designed to assess and improve skills for applicants who are graduates of clinical competency assessment programs. In order for the applicant to be able to complete either of these options, however, the individual must obtain a provisional license. The applicant must also pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN® Examination) before obtaining the provisional license to complete the clinical practice hours necessary to comply with the adopted recommendations of the Commission and legislative directives.

A third option was also discussed by ACE, and ultimately approved by the Board, that would allow an applicant to complete courses at an approved Texas program. This option would ensure that any applicant could remedy gaps in his/her education by receiving formalized education in a Texas nursing education program.

The Board reviewed and discussed the Commission's final recommendations, the Committee's recommendations; and Board Staff's recommendations at the October 2017 regularly scheduled Board meeting, and approved the proposal for publication in the Texas Register for public comment.

Section by Section Overview

HB 2950 requires the Board to develop rules, with stakeholder input from ACE, defining substantially equivalent standards to be used to recognize out-of-state programs and to provide a path to initial licensure for graduates of out-of-state programs that are determined not to be substantially equivalent to Board standards for Texas programs. The amendments flesh out these areas of substantial equivalence by providing a definition of what would be considered a substantially equivalent program.

A substantially equivalent Registered Nursing program must: be approved by a state governmental entity which awards a nursing diploma or degree upon graduation; include general education courses providing a sound foundation for nursing education for the level of preparation; include didactic content and supervised clinical learning experiences in medical-surgical, maternal/child health, pediatrics, geriatrics, and mental health nursing that teach students to use a systematic approach to clinical decision-making and safe patient care across the life span; and for baccalaureate degree nursing programs, courses must also include courses in community, research, and leadership.

A substantially equivalent vocational nursing program must be approved by a governmental entity and must provide a certificate, degree, or diploma upon completion. The nursing courses must include didactic and supervised learning clinical experiences in medical-surgical, maternal/child health, pediatrics, geriatrics, and mental health nursing that teach students to use a systematic approach to clinical decision-making and safe patient care across the life span. These programs must also include support courses providing a sound foundation for nursing education for the level of preparation.

The amendments incorporate the statutory scheme in HB 2950, which deems clinical assessment competency programs to be equivalent as long as they meet the applicable requirements of the statute. The amendments also address several pathways to licensure for an applicant who does not have substantially equivalent education. If a nurse has been found not to have substantially equivalent education, the amendments require the nurse to pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN® Examination) to ensure they have the basic knowledge and skills to practice safely. Once a nurse has passed the NCLEX, they are eligible to receive a provisional license which will allow them to provide supervised patient care. An applicant may also enroll in a Texas program to fill in the gaps that prevented the applicant from receiving a substantially equivalent education. The applicant may also enter into a Texas program which could design a program specifically for the individual's gaps in education, such as a lack of supervised clinical assessments, or the applicant may work in a supervised practice setting for five hundred (500) hours under a preceptor, who would then be able to assess and sign off on the competency of that nurse to practice.

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 change in the revenue to state government as a result of the enforcement or administration of 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 an increase in parity and consistency among nurses educated outside of Texas and nurses educated in Texas. Further, the proposed amendments provide several options for nurses lacking a substantially equivalent education to be able to become licensed in Texas.

The proposed rule may result in some potential costs to applicants who apply for licensure by examination but do not have a substantially equivalent education to a Texas educated nurse. In these situations, there are multiple potential pathways for the individual to utilize. As the Board is not able to regulate the price charged by nursing educational programs or any price charged by preceptors in an employment setting, the Board cannot state with certainty the precise amount programs will charge. However, the applicant is free to choose the most economical and feasible of these pathways. Further, any costs associated with the proposal are the direct result of the implementation of the statutory mandates of HB 2950. Further, although there may be associated costs of compliance with the proposal for some individuals, the Board is exempted from compliance with the Government Code §2001.0045 under the provisions of §2001.0045(c)(9), as the proposal is a direct result of the Commission's recommendations and is necessary to implement the statutory mandates of HB 2950.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses or micro businesses, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule.

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.

As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposal because no individual, Board regulated entity, or other entity required to comply with the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or (2). The only entities subject to or affected by the proposal are individual applicants. These individuals do not qualify as a micro business or small business under the Government Code §2006.001(1) or (2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create a new regulation, but does implement several new regulatory options for individuals, as a result of the mandates of HB 2950; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and (viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018 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.texas.gov, 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 authority of the Occupations Code §301.151 and §301.157(d-4), (d-8), (d-9), (d-11), and (d-12).

Cross Reference To Statute. The following statutes are affected by this proposal: the Occupations Code §301.151 and §301.157(d-4), (d-8), (d-9), (d-11), and (d-12).

§217.2.Licensure by Examination for Graduates of Nursing Education Programs Within the United States, its Territories, or Possessions.

(a) All applicants for initial licensure by examination shall:

(1) - (3) (No change.)

(4) graduate from a Texas nursing program or a program with substantially equivalent education standards to a Texas approved nursing program as defined below.

(A) A professional nursing education program operated in another state may be determined to have substantially equivalent education standards to a Texas approved nursing program if:

(i) the program is approved by a state board of nursing or other governmental entity to offer a pre-licensure professional nursing program of study that awards a nursing diploma or degree upon completion;

(ii) the program includes general education courses providing a sound foundation for nursing education for the level of preparation;

(iii) the program's nursing courses include didactic content and supervised clinical learning experiences in medical-surgical, maternal/child health, pediatrics, geriatrics, and mental health nursing that teach students to use a systematic approach to clinical decision-making and safe patient care across the life span; and

(iv) for baccalaureate degree nursing programs, nursing courses must also include didactic content and supervised clinical learning experiences, as appropriate, in community, research, and leadership.

(B) A vocational nursing education program operated in another state may be determined to have substantially equivalent education standards to a Texas approved nursing program if:

(i) the program is approved by a state board of nursing or other governmental entity to offer a pre-licensure vocational/practical nursing program of study that awards a vocational/practical nursing certificate, diploma, or degree upon completion;

(ii) the program's nursing courses include didactic and supervised clinical learning experiences in medical-surgical, maternal/child health, pediatrics, geriatrics, and mental health nursing that teach students to use a systematic approach to clinical decision-making and safe patient care across the life span; and

(iii) the program includes support courses providing a sound foundation for nursing education for the level of preparation.

(C) A clinical competency assessment program shall be deemed substantially equivalent to a Texas approved nursing program while compliant with Tex. Occ. Code §301.157(d-8) and (d-9). A clinical competency assessment program will be deemed to not be substantially equivalent to a Texas approved nursing program if the program fails to meet applicable requirements of Tex. Occ. Code §301.157(d-11) and (d-12).

(D) If an applicant does not have substantially equivalent education under this paragraph, the applicant may become eligible for licensure if the applicant enrolls in an approved Texas program and completes the necessary educational requirements.

(E) If an applicant for licensure as a registered nurse has completed a clinical competency assessment program, the Board may issue a provisional license to the applicant once the applicant has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN® Examination). The applicant will be eligible for full licensure if the applicant completes the requirements of clause (i) or (ii) below:

(i) The applicant completes 500 hours of clinical practice under the direct supervision of an approved preceptor. The applicant, prior to beginning practice, must submit the name and license number of a potential preceptor for Board approval. After completion of 500 hours of clinical practice under direct supervision of the approved preceptor and the preceptor's signature that the applicant is competent and safe to practice nursing, the applicant may be eligible for full licensure.

(ii) The applicant completes an educational program at an approved Texas program which is designed to assess and improve clinical skills for applicants who have not completed supervised clinical experiences in their prior educational program. The applicant must seek and receive the Board's approval prior to entering into the program to ensure that the program will allow the applicant may be eligible for full licensure. The applicant must provide the Board evidence of completion of the approved program.

[(4) Licensed vocational nurse applicants:]

[(A) must hold a high school diploma issued by an accredited secondary school or equivalent educational credentials as established by the General Education Development Equivalency Test (GED);]

[(B) who have graduated from another U.S. jurisdiction's nursing education program must satisfactorily have completed curriculum comparable to the curriculum requirements for graduates of board-approved vocational nurse education programs.]

(5) - (6) (No change.)

(b) - (f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704801

John Vanderford

Assistant General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6879


22 TAC §217.12

Introduction

The Texas Board of Nursing (Board) proposes amendments to §217.12, concerning Unprofessional Conduct. The amendments are proposed under the authority of the Occupations Code §301.151 and §301.452(b)(10) and (e), as amended by House Bill (HB) 2950, effective September 1, 2017, and are necessary to comply with the adopted recommendations of the Texas Sunset Advisory Commission (Commission) and legislative directives.

Background

The Board was last reviewed by the Commission in 2006-2007 (during the 80th Legislative cycle), and underwent its current review in 2016-2017 (during the 85th Legislative cycle). The Commission adopted several recommendations as a result of its review of the Board. One specific recommendation concerned the Board's definition of unprofessional conduct. The Commission found that the statutory provision in the Nursing Practice Act (NPA) related to unprofessional conduct and the associated Board rule defining the term included broad and subjective language that extended the Board's reach beyond the practice of nursing. The Commission further found that the relationship between unprofessional conduct and the practice of nursing were sometimes tenuous, as personal issues, such as criminal violations, in a nurse's home life did not necessarily indicate how a nurse would act at work. As a result, the Commission re-iterated that the Board's application of unprofessional conduct should be limited to the practice of nursing and recommended that the Board revise its rules regarding unprofessional conduct to remove any subjective language or requirements not specifically related to the practice of nursing. Further, the Commission recommended that the Board seek stakeholder input to revise the rules and adopt new rules by March 1, 2018. The Commission's recommendations were codified in HB 2950.

Stakeholder Input

The Board convened and charged its Advisory Committee on Licensure, Eligibility and Discipline (Committee) with reviewing the Commission's recommendations and providing proposed changes to the Board. The Committee met on May 12, 2017; June 9, 2017; August 11, 2017; and September 15, 2017, to review all of the Commission's recommendations regarding discipline and comply with the Board's charge. The Committee reserved the meeting on September 15, 2017, to review and discuss the Board's unprofessional conduct rule. However, the Committee was unable to convene a quorum at the Committee's September 15, 2017, meeting, and was unable to make formal recommendations to the Board regarding changes to its unprofessional conduct rule. However, the Committee members that were present at the September 15, 2017, meeting, discussed the Board's unprofessional conduct rule and provided informal comments to Staff.

The Board reviewed and discussed the Commission's final recommendations, statutory changes made by HB 2950, the Committee's informal comments, and Board Staff's recommendations for changes to its unprofessional conduct rule at the October 2017 regularly scheduled Board meeting. The Board approved the proposed changes to the unprofessional conduct rule and directed they be published in the Texas Register for public comment.

Overview of Proposed Changes

First, the Board reviewed the statutory changes in HB 2950 (relating to unprofessional conduct) to ensure that the proposed changes to the rule comply with the legislature's intent. HB 2950 amended Tex. Occ. Code §301.452(b)(10) and authorizes the Board to take disciplinary action against an individual for unprofessional conduct in the practice of nursing that is likely to deceive, defraud, or injure a patient or the public. Further, HB 2950 added new §301.452(e), which requires the Board to adopt rules to ensure that disciplinary action, including licensure denial, under §301.452(b)(10) is based on the application of objective criteria that is clearly and rationally connected to the individual's conduct, and, that any negative outcome resulting from that conduct is determined to affect the individual's ability to effectively practice nursing.

In order to ensure that the Board's proposed changes comply with the mandates of HB 2950, the Board eliminated tenuous connections and subjective language and requirements not specifically related to the practice of nursing from the rule. Specifically, and in compliance with the Commission's recommendations, the Board also eliminated criminal conduct from the rule text. The Board then reviewed the rule, in compliance with the Commission's recommendations and the statutory changes in HB 2950, to ensure that the remaining specified conduct is clearly and rationally connected to the practice of nursing and is likely to objectively affect an individual's ability to effectively practice nursing. Additionally, the Board eliminated any unnecessary, repetitive, or confusing language from the rule.

Section by Section Overview

The rule begins by stating its purpose. The purpose of the rule is to identify behaviors in the practice of nursing which are likely to deceive, defraud, or injure clients or the public, regardless if actual injury is established. The specified conduct that follows is clearly and rationally connected to the practice of nursing, which is also consistent with the Commission's recommendations and the statutory mandates of HB 2950.

Proposed amended §217.12(1)(B) provides that failing to conform to generally accepted nursing standards in applicable practice settings constitutes unprofessional conduct. Because an individual's conduct need not be careless or repetitive in order to place patients or the public at risk of harm, the proposed amendment eliminates these qualifiers from the rule text.

Proposed amended §217.12(2) eliminates the phrase "appropriate and recognized" from the paragraph. The proposal instead requires compliance with standards and guidelines required by federal or state law or regulation or by facility policy, which are objective in nature and easier to identify.

Proposed amended §217.12(3) corrects capitalization errors and updates terminology. These proposed amendments are not considered substantive in nature.

Proposed amended §217.12(4) eliminates a redundant phrase that appears at the beginning of the rule. Further, because an individual's conduct need not be careless or repetitive in order to endanger a patient or client's life, health, or safety, proposed amended §217.12(4) removes these unnecessary qualifiers from the rule.

Proposed amended §217.12(6)(B) corrects a capitalization error. This proposed amendment is not considered substantive in nature.

Because an individual's answers in licensing and employment matters are routinely relied upon by potential employers, credentialing organizations, patients, and the Board, a false or misleading response could reasonably affect a decision to license, employ, certify, or utilize the nurse. The proposed amendments to §217.12(6)(I) clarify this point.

Proposed amended §217.12(9) corrects a capitalization error. This proposed amendment is not considered substantive in nature.

Proposed amended §217.12(11)(B) corrects a capitalization error. This proposed amendment is not considered substantive in nature.

Proposed amended §217.12(11)(C) removes an unnecessary qualifier from the text of the rule.

The proposal eliminates current §217.12(13) in its entirety from the rule.

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 change in the revenue to state government as a result of the enforcement or administration of 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 rules that comply with the Commission's recommendations and the statutory mandates of HB 2950.

There are no anticipated costs of compliance with the proposal. The proposed amendments do not implement new requirements or restrictions, and in some cases, remove existing restrictions from the text of the rule. Further, the Board does not anticipate that licensees will alter their compliance with the rule based on the proposed amendments. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045. Even if costs were anticipated as a result of the implementation of the proposal, the Board is exempted from compliance with §2001.0045 under the provisions of §2001.0045(c)(9), as the proposal is a direct result of the Commission's recommendations and is necessary to implement the statutory mandates of HB 2950.

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 individual, Board regulated entity, or other entity required to comply with the proposed amendments because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal does not create new restrictions or requirements and is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal does not create new restrictions or requirements and is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create a new regulation; (vi) the proposal does not expand or repeal an existing regulation, and only limits the existing regulation to the extent that it removes conduct from the rule that is not directly and rationally related to the practice of nursing, as is required by the recommendations of the Commission and the statutory mandates of HB 2950; (vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and (viii) the proposal does not have an effect on the state's economy.

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 January 7, 2018 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.texas.gov, 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 authority of the Occupations Code §301.151 and related §301.452(b)(10) and (e).

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 301.452(b)(10) provides that a person is subject to denial of a license or to disciplinary action for unprofessional conduct in the practice of nursing that is likely to deceive, defraud, or injure a patient or the public.

Section 301.452(e) requires the Board to adopt rules to ensure that license denials and disciplinary action under subsection (b)(10) are based on the application of objective criteria that are clearly and rationally connected to the applicant 's or license holder's conduct and that any negative outcome resulting from that conduct is determined to affect the person 's ability to effectively practice nursing.

Cross Reference To Statute. The following statutes are affected by this proposal:

Rule: §217.12

Statute: §301.151 and §301.452(b)(10) and (e)

§217.12.Unprofessional Conduct.

The following unprofessional conduct rules are intended to protect clients and the public from incompetent, unethical, or illegal conduct of licensees. The purpose of these rules is to identify [unprofessional or dishonorable] behaviors in the practice of nursing [of a nurse] which [the board believes] are likely to deceive, defraud, or injure clients or the public. Actual injury to a client need not be established. These behaviors include but are not limited to:

(1) Unsafe Practice--actions or conduct including, but not limited to:

(A) (No change.)

(B) Failing [Carelessly or repeatedly failing] to conform to generally accepted nursing standards in applicable practice settings;

(C) - (G) (No change.)

(2) Failure of a chief administrative nurse to follow [appropriate and recognized] standards and guidelines required by federal or state law or regulation or by facility policy in providing oversight of the nursing organization and nursing services for which the nurse is administratively responsible.

(3) Failure to practice within a modified scope of practice or with the required accommodations, as specified by the Board [board] in granting an encumbered [a coded] license or any stipulated agreement with the Board [board].

(4) Conduct [Careless or repetitive conduct] that may endanger a client's life, health, or safety. [Actual injury to a client need not be established.]

(5) (No change.)

(6) Misconduct--actions or conduct that include, but are not limited to:

(A) (No change.)

(B) Failing to cooperate with a lawful investigation conducted by the Board [board];

(C) - (H) (No change.)

(I) Failing to answer specific questions or providing false or misleading answers in a licensure or employment matter that could reasonably affect [would have affected] the decision to license, employ, certify or otherwise utilize a nurse; or

(J) (No change.)

(7) - (8) (No change.)

(9) Dismissal from a board-approved peer assistance program for noncompliance and referral by that program to the Board [BNE].

(10) (No change.)

(11) Unlawful Practice--actions or conduct that include, but are not limited to:

(A) (No change.)

(B) Violating an order of the Board [board ], or carelessly or repetitively violating a state or federal law relating to the practice of vocational, registered or advanced practice nursing, or violating a state or federal narcotics or controlled substance law;

(C) Aiding [Knowingly aiding], assisting, advising, or allowing a nurse under Board Order to violate the conditions set forth in the Order; or

(D) (No change).

(12) (No change.)

[(13) Criminal Conduct--including, but not limited to, conviction or probation, with or without an adjudication of guilt, or receipt of a judicial order involving a crime or criminal behavior or conduct that could affect the practice of nursing.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 20, 2017.

TRD-201704747

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6822


PART 16. TEXAS BOARD OF PHYSICAL THERAPY EXAMINERS

CHAPTER 322. PRACTICE

22 TAC §322.4

The Texas Board of Physical Therapy Examiners proposes an amendment to §322.4, Practicing in a Manner Detrimental to the Public Health and Welfare, regarding the addition of a violation of the Physical Therapy Licensure Compact rules.

The amendment as proposed would include violating the Physical Therapy Licensure Compact rules as practicing in a manner detrimental to the public health and welfare with possible disciplinary action.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is defining detrimental practice for individuals who are holding a Compact privilege to practice in Texas. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. The proposed rule has been reviewed by legal counsel and found to be within the state agency's authority to adopt.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§322.4.Practicing in a Manner Detrimental to the Public Health and Welfare.

(a) (No change.)

(b) Practicing in a manner detrimental to the public health and welfare may include, but is not limited to, the following:

(1) - (16) (No change.)

(17) abandoning or neglecting a patient under current care without making reasonable arrangements for the continuation of such care; [and]

(18) failing to maintain the confidentiality of all verbal, written, electronic, augmentative, and nonverbal communication, including compliance with HIPAA regulations; and[.]

(19) violating the rules of the Physical Therapy Licensure Compact if holding a Compact privilege to practice in Texas.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704770

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 323. POWERS AND DUTIES OF THE BOARD

22 TAC §323.5, §323.6

The Texas Board of Physical Therapy Examiners proposes new rules §323.5 and §323.6, pursuant to Senate Bill (SB) 317 addition of §453.109, Occupations Code during the 85th Legislative Session.

The additional §323.5, Negotiated Rulemaking and §323.6, Alternative Dispute Resolution are proposed in order to comply with statutory amendments to the Physical Therapy Practice Act regarding establishing a policy on Negotiated Rulemaking and Alternative Dispute Resolution.

John P. Maline, Executive Director, has determined that for the first five-year period these new rules are in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering these rules. The rules are not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with these rules. The public benefit of the proposed rules is clarification of the Board's use of alternative dispute resolution and negotiated rulemaking. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the new rules.

The impact of government growth by the proposed rules is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does create a new regulation for board function; does expand the existing powers and duties of the board; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed new rules may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date these proposed new rules are published in the Texas Register.

The new rules are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Statutory Authority: Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§323.5.Negotiated Rulemaking.

It is the policy of the board to engage in negotiated rulemaking procedures consistent with Texas Government Code, Chapter 2008, when appropriate.

§323.6.Alternative Dispute Resolution.

It is the policy of the board to use alternative dispute resolution where appropriate consistent with Texas Government Code Chapter 2009 and any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704768

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 325. ORGANIZATION OF THE BOARD

22 TAC §325.1

The Texas Board of Physical Therapy Examiners proposes an amendment to §325.1, Elections, pursuant to Senate Bill (SB) 317 amendments of §453.058, Occupations Code, during the 85th Legislative Session.

The amendment is proposed in order to comply with a statutory amendment to the Physical Therapy Practice Act regarding the designation of the presiding officer of the board by the governor.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification of the designation and election of the board's officers. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§325.1.Elections.

(a) The governor shall designate a member of the board as the presiding officer of the board.

(b) Elections of additional officers shall be held at the second board meeting after new members are appointed.

(c) Officers will assume duties at the next board meeting following election.

(d) Vacancies of offices other than the presiding officer shall be filled by election at the next board meeting following the vacancy. [Elections of officers shall be held at the second board meeting after new members are appointed. Officers will assume duties at the next board meeting. Vacancies of offices shall be filled by election at the next board meeting.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704771

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


22 TAC §325.7

The Texas Board of Physical Therapy Examiners proposes an amendment to §325.7, Board Member Terms, pursuant to Senate Bill (SB) 317 amendments of §453.056(a) Occupations Code during the 85th Legislative Session.

The amendment is proposed in order to comply with statutory amendments to the Physical Therapy Practice Act regarding grounds for removal and excused absences of a board member.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification of the authority of the board to excuse the absence of a member from a regularly scheduled board meeting. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§325.7.Board Member Terms.

(a) Members of the board serve staggered six-year terms expiring in January of an odd-numbered year, or as appointed by the governor.

(b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired part of the term.

(c) A member's absence from a regularly scheduled board meeting that the member is eligible to attend may be excused by a majority vote of the board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704774

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 329. LICENSING PROCEDURE

22 TAC §329.2

The Texas Board of Physical Therapy Examiners proposes an amendment to §329.2, Licensure by Examination, pursuant to Senate Bill (SB) 317 amendments of §453.205, Occupations Code, during the 85th Legislative Session.

The amendment is proposed in order to comply with a statutory amendment to the Physical Therapy Practice Act regarding the compliance of the security and copyright of the National Physical Therapy Examination and reporting of any known violations.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification that the national examination used for licensure is a secure and copyrighted assessment tool and that violators of the security and copyright will be reported. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§329.2.Licensure by Examination.

(a) - (d) (No change.)

(e) NPTE Security and Copyright.

(1) An applicant for a license must agree to comply with the security and copyright provision of the NPTE.

(2) The board will report any known violation of the security or copyright provision or a compromise or attempted compromise of the provision to the FSBPT.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704772

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 341. LICENSE RENEWAL

22 TAC §341.2

The Texas Board of Physical Therapy Examiners proposes an amendment to §341.2, Continuing Competence Requirements, pursuant to Senate Bill (SB) 317 amendments of §453.254, Continuing Competence, Occupations Code, during the 85th Legislative Session.

The amendment is proposed in order to comply with a statutory amendment to the Physical Therapy Practice Act regarding the use of a Request for Proposal process in selecting an appropriate organization to approve continuing competence activities.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification that the process for selecting an appropriate organization to approve continuing competence activities is through the board's established rule for Request for Proposals for Outsourced Services. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§341.2.Continuing Competence Requirements.

(a) (No change.)

(b) All continuing competence activities submitted to satisfy renewal requirements must be board-approved by an organization selected by the board as established in subsection (i) [(h) ] of this section.

(c) - (g) (No change.)

(h) If the board chooses to authorize an organization(s) to approve continuing competence activities, the board shall select an appropriate organization(s) pursuant to §323.4 of this title, Request for Proposals for Outsourced Services.

(i) [(h)] Pursuant to a Memorandum of Understanding (MOU) with the board, the Texas Physical Therapy Association (TPTA) shall act as a board-approved organization and shall be authorized to accredit providers and to evaluate and approve continuing competence activities for purposes of compliance with mandatory CC requirements as set by the board. This authority shall include authority to give, deny, withdraw and limit accreditation of providers and approval of competence activities, and to charge and collect fees as set forth in the MOU and in the statute and rules governing the board and the practice of physical therapy in Texas.

(1) A program may be approved before or after the licensee attends it, but must be approved prior to license renewal.

(2) To apply for continuing competence review, the licensee or sponsor/provider must submit a fee as approved by the board with the CC review application and any additional documentation as specified in this section to the TPTA. Interested parties may contact the TPTA in Austin, Texas, (512) 477-1818, www.tpta.org.

(A) Accredited providers and course sponsors are authorized to use the following statements to notify licensees of approval.

(i) Sponsors of approved activities.

(I) The following statement is authorized for use in publicity: "This activity has been approved by the Texas Board of Physical Therapy Examiners for ____ CCUs for PTs and PTAs."

(II) The following statement is authorized for use on certificates of completion only: "This activity has been approved by the Texas Board of Physical Therapy Examiners, approval #____, for ____ CCUs for PTs and PTAs."

(ii) Accredited providers.

(I) The following statement is authorized for use in publicity: "This activity is offered by the Texas Board of Physical Therapy Examiners Accredited Provider #______ and provides _____ CCUs for PTs and PTAs licensed in Texas."

(II) The following statement is authorized for use on certificates of completion only: "This activity is offered by the Texas Board of Physical Therapy Examiners Accredited Provider #______ and provides _____ CCUs for PTs and PTAs licensed in Texas."

(B) Sponsors of activities that have not received an approval number from the TPTA are not authorized to include a statement implying pending or future approval of that activity by the board.

(C) A course is approved only for the accredited provider offering the course or the sponsor submitting it for approval. Course approval may not be transferred from one provider or sponsor to another.

(3) Interested parties may contact the TPTA to inquire if a particular activity is approved. A list of approved activities is available on the TPTA web site.

(4) Pursuant to the MOU, the TPTA shall provide quarterly reports to the board of its activities. Additionally, the TPTA shall report to the board the results of periodic quality assurance follow-up or review of a representative sample of approved continuing competence activities. In the event of sponsor/provider noncompliance, results will be reported to the board in writing for further investigation and direction.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704773

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


CHAPTER 343. CONTESTED CASE PROCEDURE

22 TAC §343.35

The Texas Board of Physical Therapy Examiners proposes an amendment to §343.35, Complaint Investigation and Disposition, pursuant to Senate Bill (SB) 317 amendments of §453.154(e), Occupations Code, during the 85th Legislative Session.

The amendment is proposed in order to comply with a statutory amendment to the Physical Therapy Practice Act regarding the designation of staff instead of the coordinator and the executive director to provide summary data of complaints to the board so that necessary action can be taken on the complaint.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification of the process for providing summary data of complaints to the board so that the board may take necessary action on complaints. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities, therefore an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Physical Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Government Code, §453.102. Cross-reference to Statute: Chapter 453.

§343.35.Complaint Investigation and Disposition.

(a) - (c) (No change.)

(c) The staff shall provide summary data of complaints extending beyond the complaint timeline to the [coordinator and the executive director who will then notify the] board so that the board may take necessary action on the complaint.

(d) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 21, 2017.

TRD-201704769

John P. Maline

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900


PART 28. EXECUTIVE COUNCIL OF PHYSICAL THERAPY AND OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 651. FEES

22 TAC §651.2

The Executive Council of Physical Therapy and Occupational Therapy Examiners proposes an amendment to §651.2, Physical Therapy Board Fees to add fees for a privilege to practice under the Physical Therapy Licensure Compact.

The amendment as proposed would add a state fee of $50.00 for individuals from other Compact states who apply for privileges to practice in Texas. If an applicant is active military or the spouse of active military or a veteran, the fee would be $0.00.

John P. Maline, Executive Director, has determined that for the first five-year period this amendment is in effect there will be no impact on costs or revenue to state or local governments as a result of enforcing or administering this amendment. The rule is not anticipated to impact a local economy, and there is no probable economic cost to persons required to comply with the rule. The public benefit of the proposed rule is clarification of the fees charged to physical therapists and physical therapist assistants who are seeking a Compact privilege to practice in Texas. Mr. Maline has determined that there will be no costs or adverse economic effects to small or micro businesses or rural communities; therefore, an economic impact statement or regulatory flexibility analysis is not required for the amendment.

The impact of government growth by the proposed rule is as follows: does not create or eliminate a government program; does not require the creation of new employee positions or the elimination of existing employee positions; does not require an increase or decrease in future legislative appropriations to the agency; does not require an increase or decrease in existing fees paid to the agency; does not create a new regulation; does not expand, limit, or repeal an existing regulation; does not increase or decrease the number of individuals subject to the rule's applicability; and neither positively nor adversely affects this state's economy.

Comments on the proposed amendments may be submitted to Randall Glines, Staff Services Officer, Executive Council of Physical Therapy and Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701; email: randall@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

The amendments are proposed under the Executive Council of Physical Therapy and Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 453, Texas Occupations Code, which provides the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Statutory Authority: Government Code, §452.154. Cross-reference to Statute: Chapter 452.

§651.2.Physical Therapy Board Fees.

(a) - (n) (No change.)

(o) Compact Privilege Fee.

(1) Non military/spouse or veteran PT or PTA--$50.

(2) Military/spouse or veteran PT or PTA--$0.00.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 22, 2017.

TRD-201704781

John P. Maline

Executive Director

Executive Council of Physical Therapy and Occupational TherapyExaminers

Earliest possible date of adoption: January 7, 2018

For further information, please call: (512) 305-6900