TITLE 22. EXAMINING BOARDS

PART 10. TEXAS FUNERAL SERVICE COMMISSION

CHAPTER 203. LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES

SUBCHAPTER B. DUTIES OF A FUNERAL ESTABLISHMENT/LICENSEE

22 TAC §203.24

The Texas Funeral Service Commission (Commission) adopts amendments to 22 TAC §203.24, concerning Display of License without changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2134). The amendments allow a copy of an original license -- in lieu of the original license -- to be maintained by a funeral establishment under specific circumstances. The amendments will ease the regulatory burden on licensees while maintaining protections for consumers to ensure they work only with licensed funeral directors and embalmers.

No comments were received regarding the amendment.

The amendment is adopted under Texas Occupations Code §651.152, which authorizes the Texas Funeral Service Commission to adopt rules considered necessary for carrying out the Commission's work and Texas Occupations Code §651.261, which requires license holders to conspicuously display their licenses at each workplace.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

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

TRD-201702424

Janice McCoy

Executive Director

Texas Funeral Service Commission

Effective date: July 11, 2017

Proposal publication date: April 21, 2017

For further information, please call: (512) 936-2469


PART 11. TEXAS BOARD OF NURSING

CHAPTER 213. PRACTICE AND PROCEDURE

22 TAC §213.34

Introduction. The Texas Board of Nursing (Board) adopts amendments to §213.34, relating to Deferred Discipline. The amendments are adopted without changes to the proposed text published in the May 19, 2017, issue of the Texas Register (42 TexReg 2645) and will not be republished.

Reasoned Justification. The amendments are adopted under the authority of Tex. Occ. Code §301.6555 and §301.151 and reduce the required period of deferral from five (5) years to three (3) years. The remaining provisions of the adopted section remain unchanged.

In 2009, pursuant to Senate Bill (SB) 1415, the Texas Legislature first authorized the use of deferred discipline, through a pilot program, as an alternative method of resolving minor violations of the Nursing Practice Act (NPA) and Board rules. The Board first adopted rules to implement the requirements of SB 1415 in 2010 (35 TexReg 6077). In 2013, the Texas Legislature made deferred discipline a permanent part of the NPA, and the Board's rules were amended in 2014 to reflect this change (39 TexReg 5753).

Under the Board's rule, a final disciplinary action against an individual may be deferred if certain conditions are met. If an individual is able to successfully complete all of the required conditions of the order and the period of deferment has run, the originating complaint is dismissed and the deferred order becomes confidential under state law. The adopted amendments reduce the required period of deferment from five (5) years from the effective date of the deferred order to three (3) years from the effective date of the deferred order.

Period of Deferment

In January 2011, the Board created the Deferred Disciplinary Action Pilot Program Advisory Committee to evaluate and make recommendations regarding the program's efficiency and efficacy, taking into account concerns regarding recidivism and the potential effect of confidential orders on public health and safety. The Committee met six times over the course of a year and a half and reviewed statistical data, employer and nurse survey responses, and extrinsic recidivism data. The Committee's evaluation and recommendations were included in the Board's report to the Legislature in 2012, wherein the Committee and the Board recommended making deferred discipline a permanent part of the NPA.

In its review, the Committee gave considerable attention to recidivism data and the program's period of deferment. At the time the Committee considered the recidivism data associated with the pilot program, the program was just over a year old. While the recidivism data that had been recorded up to that point was encouraging, the pilot program lacked enough longevity to support specific recommendations regarding shortening the period of deferment. However, the Committee recommended that the Board re-evaluate the recidivism data at a future date and, if supported by the data, reduce the period of deferment. The Committee also suggested considering a three year period of deferment for lower level deferred disciplinary orders.

Recidivism

In January 2017, Board Staff evaluated 268 deferred disciplinary orders entered between February 1, 2011, and January 31, 2014, to determine the recidivism rate. Out of the 268 deferred orders, only 29 new cases (new violations of the NPA and/or Board rules) were identified. Of the 29 new cases, 17 occurred within the first year of the deferment period, 9 occurred in the second year of the deferment period, and 1 occurred in the third year of the deferment period, making 93.1% of the recidivism within the first three years of the deferment period. Coupled with the initial data reviewed by the Committee, this data tends to show that the vast majority of recidivism, if any, occurs within the early part of the deferred period (within the first three years).

The Board considered this data at its April 2017 regularly scheduled meeting. While the Board believes it is important for patterns of harmful or risky practice to be identified and successfully remediated, a five year deferred period no longer appears necessary to address these needs. Based upon the most recent data, it appears that a shorter deferred period could reasonably protect the interests of the public, as well as the interests of the individual seeking to remediate his/her prior practice breakdown. As such, the Board determined that it would be appropriate to shorten the deferral period from five (5) years to three (3) years and approved the proposal of the amendments to accomplish this.

How the Sections Will Function. Adopted §213.34(f) provides that a deferred disciplinary order will be available to the public for a minimum of three years and until such time as an individual successfully completes all of the conditions required by the deferred disciplinary order and the originating complaint is dismissed by the Board. After such time, the deferred disciplinary order will become confidential to the same extent that a complaint is confidential under the Occupations Code §301.466.

Summary of Comments and Agency Response.

Comment: A commenter representing the Coalition for Nurses in Advanced Practice stated that it supports the Board's proposed amendment to the deferred discipline rule. The commenter agrees that the Board should have the option of removing deferred disciplinary orders from public view after three years, and that this is in the best interest of the public and nurses who commit relatively minor infractions. The commenter states that it appreciates that Board staff are continually re-evaluating its disciplinary procedures to promote public protection, fairness to nurses, and the greatest possible access to safe nursing care.

Agency Response: The Board appreciates the comment.

Names of Those Commenting For and Against the Proposal.

For: Coalition for Nurses in Advanced Practice.

Against: None.

For, with changes: None.

Neither for nor against, with changes: None.

Statutory Authority. The amendments are adopted under the Occupations Code §301.6555 and §301.151.

Section 301.6555(a) provides that, for any action or complaint for which the Board proposes to impose on a person a sanction other than a reprimand or a denial, suspension, or revocation of a license, the Board may: (i) defer the final action the Board has proposed if the person conforms to conditions imposed by the Board, including any condition the Board could impose as a condition of probation under Section 301.468; and (ii) if the person successfully meets the imposed conditions, dismiss the complaint.

Section 301.6555(b) states that, except as provided by this subsection, a deferred action by the Board is not confidential and is subject to disclosure in accordance with Chapter 552, Government Code. Further, if the person successfully meets the conditions imposed by the Board in deferring final action and the Board dismisses the action or complaint, the deferred action of the Board is confidential to the same extent as a complaint is confidential under Section 301.466.

Section 301.151 provides that the Board may adopt and enforce rules consistent with this chapter 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 this chapter; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

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

TRD-201702431

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Effective date: July 12, 2017

Proposal publication date: May 19, 2017

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


PART 30. TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS

CHAPTER 681. PROFESSIONAL COUNSELORS

The Texas State Board of Examiners of Professional Counselors (board), adopts amendments to §§681.41, 681.114, and 681.125; the repeal of §681.127 and new §681.253, concerning the licensure and regulation of professional counselors without changes to the proposed text as published in the February 10, 2017, issue of the Texas Register (42 TexReg 544), and therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

To implement Senate Bill (SB) 807 and SB 1307, 84th Legislature, Regular Session, 2015, which amended Texas Occupations Code, Chapter 55, relating to occupational license application; examination fees and licensing and renewal of certain military service members, military veterans, and military spouses, the board adopts to repeal §681.127 concerning active military renewal and inactive status, and amend §681.114, such that the section provides for initial licensing and license renewal procedures specific to military service members, military veterans, and military spouses as well as includes provisions concerning inactive status for military service members. In addition, §681.125 includes a provision for licensees impacted or displaced by national emergency or war that was previously in §681.127.

To implement House Bill (HB) 1449, 84th Legislature, Regular Session, 2015, as it relates to child custody and adoption evaluations in certain suits affecting the parent-child relationship, by stipulating minimum qualifications for licensees who hold doctoral degrees to serve as a child custody evaluator and prohibiting a holder of a Licensed Professional Counselor Intern (LPC Intern) from conducting a child custody or adoption evaluation under amended Texas Family Code, Chapter 107, unless the individual is otherwise qualified by law to conduct the evaluation, or is appointed by a court to conduct it under Texas Family Code, §107.106 or §107.155, as applicable, the board adopts to repeal §681.41(cc), and to adopt new §681.253.

SECTION-BY-SECTION SUMMARY

This summary considers only those sections which were substantially changed in language, meaning, or intent.

Subchapter C. Code of Ethics

The board adopts to repeal §681.41(cc), which was previously adopted and became effective on July 14, 2016, to implement HB 1449, 84th Legislature, Regular Session, 2015, as it relates to child custody and adoption evaluations.

Subchapter H. Licensing

The board adopts to amend §681.114, implementing SB 807 and SB 1307, 84th Legislature, Regular Session, 2015, which amended Texas Occupations Code, Chapter 55, relating to occupational license application and examination fees and to licensing and renewal of certain military service members, military veterans, and military spouses. In addition, §681.114 is amended to include provisions previously located under §681.127 concerning inactive status for military service members. However, the amendments do not implement SB 807 and SB 1307 concerning the examination fee waiver, because the professional counselor licensure examination fees and jurisprudence examination fees are not paid to the state, but to the third party administrator(s) of the examination(s).

Subchapter I. Regular License Renewal; Inactive and Retirement Status

The board adopts to amend §681.125, and includes a provision for a licensee impacted or displaced due to a national emergency or war to request inactive status. This provision was in the previous §681.127, which the board adopts to repeal.

The board adopts to repeal §681.127, so all provisions concerning initial licensing and license renewal procedures specific to military service members, military veterans, and military spouses as well as provisions concerning inactive status for military service members are easily found under §681.114.

Subchapter N. Parenting Coordination and Parenting Facilitation. The board adopts to rename this subchapter as "Subchapter N. Parenting Coordination and Facilitation and Child Custody and Adoption Evaluations."

The board adopts new §681.253 to implement HB 1449 of the 84th Legislature, Regular Session, 2015, as it relates to Licensed Professional Counselors and child custody and adoption evaluations. HB 1449 amended the Texas Family Code, Chapter 107, relating to child custody and adoption evaluations conducted and provided in certain suits affecting the parent-child relationship. New §681.253 provides minimum qualifications for child custody/adoption evaluator for a licensee who holds a doctoral degree. New §681.253 directs all other licensees to comply with minimum qualifications stipulated under Texas Family Code, Chapter 107 for child custody evaluators; §107.154 states minimum qualifications for adoption evaluators. New §681.253 prohibits LPC Interns from conducting child custody/adoption evaluations unless the individual is otherwise qualified by law to conduct the evaluation. Texas Family Code, §107.106 or §107.155 provides an exception to the required qualifications in a county with a population of less than 500,000, such that the court may appoint an otherwise qualified individual, if a court finds that an individual who meets the minimum qualifications of §107.104 or §107.154 is not available in the county to conduct the evaluation in a timely manner. New §681.253 also specifies certain standards of conduct for licensees performing child custody evaluations or adoption evaluations.

COMMENTS

The board received no comments regarding the proposed rules during the comment period.

SUBCHAPTER C. CODE OF ETHICS

22 TAC §681.41

STATUTORY AUTHORITY

The amendment is authorized by the Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 26, 2017.

TRD-201702454

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Effective date: July 16, 2017

Proposal publication date: February 10, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER H. LICENSING

22 TAC §681.114

STATUTORY AUTHORITY

The amendment is authorized under Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 26, 2017.

TRD-201702456

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Effective date: July 16, 2017

Proposal publication date: February 10, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER I. REGULAR LICENSE RENEWAL; INACTIVE AND RETIREMENT STATUS

22 TAC §681.125

STATUTORY AUTHORITY

The amendment is authorized by the Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 26, 2017.

TRD-201702458

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Effective date: July 16, 2017

Proposal publication date: February 10, 2017

For further information, please call: (512) 776-6972


22 TAC §681.127

STATUTORY AUTHORITY

The repeal is authorized by the Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 26, 2017.

TRD-201702459

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Effective date: July 16, 2017

Proposal publication date: February 10, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER N. PARENTING COORDINATION AND FACILITATION AND CHILD CUSTODY AND ADOPTION EVALUATIONS

22 TAC §681.253

STATUTORY AUTHORITY

The new section is authorized by the Texas Occupations Code, §503.203, which authorizes the board to adopt rules necessary for the performance of its duties.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 26, 2017.

TRD-201702461

Glynda Corley

Chair

Texas State Board of Examiners of Professional Counselors

Effective date: July 16, 2017

Proposal publication date: February 10, 2017

For further information, please call: (512) 776-6972