TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 374. DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS/LICENSURE OF PERSONS WITH CRIMINAL CONVICTIONS

40 TAC §374.1

The Texas Board of Occupational Therapy Examiners proposes amendments to the Schedule of Sanctions Figure in 40 Texas Administrative Code §374.1, concerning Disciplinary Actions. The amendments are proposed to replace "investigative costs" with "administrative penalties" in the Schedule of Sanctions, and to update other language to make the schedule consistent with other provisions in the chapter.

Changes to the Schedule of Sanctions include replacing investigative costs with administrative penalties. The Occupational Therapy Practice Act, Texas Occupations Code §454.3521, authorizes the Board to impose an administrative penalty for a violation of the chapter or a rule adopted under the chapter. The proposed amendments to the Schedule of Sanctions Figure in §374.1 will impose administrative penalties, not to exceed $200 for each day a violation continues or occurs, to the "Minimum Discipline," "Intermediate Discipline," and "Maximum Discipline" levels per §454.3521. The graduated penalty amounts are assessed based on the severity and type of violation per §454.3025(a).

Additional changes to the Schedule of Sanctions include updating citations to the "OT Act/Rule" column. The changes also include removing from the "Failed to Properly Renew a License" violation the reference to §367.1(b) and replacing such with a reference to the full §367.1, concerning continuing education, as further provisions in the section concern the violation. Such a change, concomitantly, will ensure that the schedule's reference to the section remains intact in the event that changes to the lettering of the section's provisions are made.

An additional cleanup removes the phrase "until conditions are met or indefinitely" from the "Maximum Discipline" column, with regard to the revocation or surrender of a license. The change is made to reflect that the administrative penalty assessed in an order is fixed, not indefinitely cumulative.

A further change to the section concerns removing from the "Minimum Discipline" and "Intermediate Discipline" columns the extraneous term "provisional" when it precedes "restricted practice." The removal is a cleanup to increase consistency in the schedule, as in other areas of the schedule, just the phrase "restricted practice" is employed for an equivalent sanction. A further change to the section involves a cleanup to correct "licensee" to "license."

FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS

Ralph A. Harper, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impact to state or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4) because the amendments do not impose a cost on state or local governments.

LOCAL EMPLOYMENT IMPACT

Mr. Harper has determined that the proposed amendments would not impact a local economy. Therefore, a local employment impact statement is not required under Texas Government Code §2001.022 and §2001.024(a)(6).

PUBLIC BENEFIT AND COST NOTE

Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the increased consistency of the penalties in the Schedule of Sanctions and conformity with other sections in the Occupational Therapy Practice Act. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments because the Occupational Therapy Practice Act already allows for the Board to impose an administrative penalty and proposed changes do not exceed that amount, and the remaining proposed amendments are cleanups that do not concern costs.

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

Mr. Harper has determined there would be no costs or adverse economic effects on small businesses, micro-businesses, or rural communities. Therefore, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT

The agency has determined that no private real property interests are affected by these proposed amendments and that these amendments do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, these amendments do not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2001.0221 that during the first five years the rule would be in effect:

(1) the rule will not create or eliminate a government program;

(2) the rule will not require the creation of new employee positions or the elimination of existing employee positions;

(3) the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new regulation as the changes concerning administrative penalties reflect extant regulations concerning such in the Occupational Therapy Practice Act, and further changes are cleanups;

(6) the rule will not limit, repeal, or expand an existing regulation as changes concerning administrative penalties reflect extant regulations already in effect in the Occupational Therapy Practice Act, and further changes are cleanups;

(7) the rule will not increase or decrease the number of individuals subject to the rule's applicability; and

(8) the rule will neither positively nor adversely affect this state's economy.

COSTS TO REGULATED PERSONS

The agency determined that the rule does not impose a cost on regulated persons who practice in compliance with the Board's statute and rules, and the rule does not impose a cost on another state agency, a special district, or a local government. To the extent the rule imposes a cost on regulated persons by imposing an administrative penalty at the conclusion of a disciplinary action, the sanction is necessary to deter the practice of occupational therapy in a manner detrimental to the public health and welfare. This rule is not subject to Texas Government Code §2001.0045 because the rule is necessary to protect the health, safety, and welfare of the residents of this state and the Board is required to adopt a schedule of administrative penalties and other sanctions by rule pursuant to Texas Occupations Code §454.3025(a).

ENVIRONMENTAL IMPACT STATEMENT

The agency has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.

PUBLIC COMMENT

Comments on the proposed amendments may be submitted in writing to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov within 30 days following the publication of this notice in the Texas Register. It is requested when sending a comment that individuals include the rule section to which the comment refers and that comments sent by email include "Public Comment" in the email's subject line.

STATUTORY AUTHORITY

The amendments to the Schedule of Sanctions Figure in 40 TAC §374.1(c) are proposed under Texas Occupations Code §454.102, which authorizes the Board to adopt rules to carry out its duties under chapter 454. The amendments are also proposed under §454.3025, which requires the Board by rule to adopt a schedule of administrative penalties and other sanctions that the Board may impose under this chapter. Lastly, the amendments are proposed under §454.3521, which authorizes the Board to impose an administrative penalty, not to exceed $200 for each day a violation continues or occurs, under this chapter for a violation of this chapter or a rule or order adopted under this chapter.

CROSS REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by these amendments.

§374.1.Disciplinary Actions.

(a) The board, in accordance with the Administrative Procedure Act, may deny, revoke, suspend, or refuse to renew or issue a license, or may reprimand or impose probationary conditions, if the licensee or applicant for licensure has been found in violation of the rules or the Act. The board will adhere to procedures for such action as stated in the Act, §§454.301, 454.302, 454.303, and 454.304.

(b) The board recognizes four levels of disciplinary action for its licensees.

(1) Level I: Order and/or Letter of Reprimand or Other Appropriate Disciplinary Action (including but not limited to community service hours).

(2) Level II: Probation--The licensee may continue to practice while on probation. The board orders the probationary status which may include but is not limited to restrictions on practice and continued monitoring by the board during the specified time period.

(3) Level III: Suspension--A specified period of time that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon the successful completion of the suspension period, the license will be reinstated upon the licensee successfully meeting all requirements.

(4) Level IV: Revocation--A determination that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon passage of 180 days, from the date the revocation order becomes final, the former licensee may petition the board for re-issuance of a license. The former licensee may be required to re-take the Examination.

(c) The board shall utilize the following schedule of sanctions in all disciplinary matters.

Figure: 40 TAC §374.1(c) (.pdf)

[Figure: 40 TAC §374.1(c)]

(d) The board shall consider the following factors in conjunction with the schedule of sanctions when determining the appropriate penalty/sanction in disciplinary matters:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of the violation; and

(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the history of previous violations;

(3) the amount necessary to deter future violations;

(4) efforts to correct the violation;

(5) the economic harm to the public interest or public confidence caused by the violation;

(6) whether the violation was intentional; and

(7) any other matter that justice requires.

(e) Licensees who provide occupational therapy services are responsible for understanding and complying with Chapter 454 of the Occupations Code (the Occupational Therapy Practice Act), and the Texas Board of Occupational Therapy Examiners' rules.

(f) Final disciplinary actions taken by the board will be routinely published as to the names and offenses of the licensees.

(g) A licensee who is ordered by the board to perform certain act(s) will be monitored by the board to ensure that the required act(s) are completed per the order of the board.

(h) The board may expunge any record of disciplinary action taken against a license holder before September 1, 2019, for practicing in a facility that failed to meet the registration requirements of §454.215 of the Act (relating to Occupational Therapy Facility Registration), as that section existed on January 1, 2019. The board may not expunge a record under this subsection after September 1, 2021.

(i) A licensee or applicant is required to report to the board a felony of which he/she is convicted within 60 days after the conviction occurs.

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 August 7, 2020.

TRD-202003213

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: September 20, 2020

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