TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 213. PRACTICE AND PROCEDURE

22 TAC §213.10

The Texas Board of Nursing (Board) proposes amendments to 22 Texas Administrative Code §213.10, relating to Notice and Service. The amendments are being proposed under the authority of the Occupations Code §301.151.

Background. The new Texas Nurse Portal (Portal), which was launched by the Board on June 15, 2020, is a paperless, confidential, and secure system that allows individuals to apply for nurse licensure by examination and endorsement and renew their licenses. The use of the Portal has moved the Board toward a paperless work flow in the Board's offices and allows the Board to communicate with applicants and licensees directly through the Portal. This online communication is often more efficient and reliable than more traditional methods, such as certified, registered, or first class mail. The proposed amendments add the Portal as a new avenue to provide notice to applicants and licensees in circumstances where state law does not specifically require notice to be sent via first class, registered, or certified mail. In those cases, Board notice will continue to be given as specified in existing subsections (a) - (e) of the rule. Notices sent via the Portal may include mandatory notices required by the Nursing Practice Act and the Nurse Licensure Compact for multistate privilege licensure, as well as courtesy notices and routine communication provided by the Board. Further, the Board has already adopted rules incorporating the use of the Portal into its communication with applicants and licensees as it relates to the change of an applicant or licensee's name and/or address (Texas Register, 46 TexReg 555). The proposed amendments are consistent with the Board's uniform transition to a more efficient online licensure system.

Section by Section Overview. Proposed new §213.10(f) provides that, notwithstanding subsections (a) - (e) of the section, notice required by a rule adopted by the Interstate Commission of Nurse Licensure Compact Administrators will be considered effective and service will be considered complete when made electronically through the Texas Nurse Portal accessible through the Board's website. Additionally, proposed new §213.10(g) provides that, notwithstanding subsections (a) - (e) of the section, notice not specifically required by state law to be provided through first class, certified, or registered mail, return receipt requested, may be made electronically through the Texas Nurse Portal accessible through the Board's website and will be considered effective and complete when made through this method. Subsections (a) - (e) contain provisions relate to notice provided via registered or certified mail and will not apply to notice provided under the proposed amendments.

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 increase the efficiency of the Board and its effectiveness in communicating with applicants and licensees. There are no anticipated costs of compliance with the proposal. The proposal relates to information provided by the Board and governs Board processes; there are no requirements for applicants or licensees to comply with.

Costs Under the Government Code §2001.0045. The Government Code §2001.0045 prohibits agencies from adopting a rule that imposes costs on regulated persons unless the agency repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule or amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. Pursuant to §2001.0045(c)(9), this prohibition does not apply to a rule that is necessary to implement legislation, unless the legislature specifically states §2001.0045 applies to the rule. Because there are no anticipated costs of compliance with the proposal, §2001.0045 is not implicated by this proposal.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. 2 The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses, micro businesses, or rural communities, 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 communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Because there are no anticipated costs of compliance associated with the proposal, an economic impact statement and regulatory flexibility analysis is not required.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't 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) the proposal is not expected to have an effect on current agency 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 affect the fees paid to the Board; (v) the proposal amends an existing regulation to improve Board communication and efficiency; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not extend to new entities not previously subject to the rule; and (viii) the proposal will not affect 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 this proposal should be submitted to Mark Majek, Director of Operations and James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to Mark.Majek@bon.texas.gov and 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. Section 301.151 addresses the Board's rulemaking authority.

Cross Reference To Statute. The following statutes are affected by this proposal: the Occupations Code §301.151.

§213.10.Notice and Service.

(a) - (e) (No change).

(f) Notwithstanding subsections (a) - (e) of this section, notice required by a rule adopted by the Interstate Commission of Nurse Licensure Compact Administrators is effective and service is complete when made electronically through the Texas Nurse Portal accessible through the Board's website.

(g) Notwithstanding subsections (a) - (e) of this section, notice not specifically required by state law to be provided through first class, certified, or registered mail, return receipt requested, may be made electronically through the Texas Nurse Portal accessible through the Board's website. Notice is effective and service is complete when made through this method.

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 December 21, 2021.

TRD-202105190

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: February 6, 2022

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


CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.5

The Texas Board of Nursing (Board) proposes amendments to 22 Texas Administrative Code §217.5, relating to Temporary License and Endorsement. The amendment is being proposed under the authority of the Occupations Code §301.151 and House Bill (HB) 139, effective September 1, 2021.

Background. HB 139, enacted during the 87th Regular Legislative Session, requires a state agency that issues a license that has a residency requirement for license eligibility to adopt rules regarding the documentation necessary for a military spouse applicant to establish residency, including by providing to the agency a copy of the permanent change of station order for the military service member to whom the spouse is married. Current Board Rule 217.5(h) includes in its eligibility requirements for a military spouse applicant proof of residency in Texas. However, proof of residency in Texas is not necessary for the issuance of single state licensure for these applicants. A military spouse applicant wishing to obtain a multistate license under the Nurse Licensure Compact must declare Texas as his/her home state on the application and submit proof of residency required under the Occupations Code Chapter 304 and related compact rules. However, a military spouse applicant is not required to obtain a multistate license to practice nursing in the State of Texas; a military spouse applicant may practice nursing in Texas by obtaining a single state license, which does not require proof of residency. In an effort to conform to the requirements of HB 139, remove any unnecessary impediments to single state licensure in Texas for military spouse applicants, and clarify the applicability of the existing rule, the proposed amendment eliminates the language in subsection (h)(1)(B) relating to proof of residency.

Section by Section Overview. Section 217.5(h) relates to out-of-state licensure of military spouse applicants. The proposed amendment eliminates the need for a military spouse applicant to submit proof of residency in Texas in order to obtain single state licensure and practice in Texas.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendment 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 amendment is in effect, the anticipated public benefit will be the adoption of rules that comply with HB 139, remove any unnecessary impediments to single state licensure in Texas for military spouse applicants, and clarify the applicability of the rule. There are no anticipated costs of compliance with the proposal. The proposal only applies to military spouse applicants applying for licensure in Texas. For these applicants, the proposed amendment removes an unnecessary requirement related to proof of residency in order to obtain single state licensure in Texas.

Costs Under the Government Code §2001.0045. The Government Code §2001.0045 prohibits agencies from adopting a rule that imposes costs on regulated persons unless the agency repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule or amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. Pursuant to §2001.0045(c)(9), this prohibition does not apply to a rule that is necessary to implement legislation, unless the legislature specifically states §2001.0045 applies to the rule. There are no anticipated costs of compliance with the proposal, and the proposal is necessary for consistency with the statutory requirements of HB 139.

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, micro businesses, or rural communities, 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 communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Because there are no anticipated costs of compliance associated with the proposal, an economic impact statement and regulatory flexibility analysis is not required.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't 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) the proposal is not expected to have an effect on current agency 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 affect the fees paid to the Board; (v) the proposal amends an existing regulation for consistency with the statutory requirements of HB 139 and makes changes that result in less restrictive and clear rules; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not extend to new entities not previously subject to the rule; and (viii) the proposal will not affect 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 this proposal should be submitted to Mark Majek, Director of Operations and James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to Mark.Majek@bon.texas.gov and 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 amendment is proposed under the authority of the Occupations Code §301.151 and HB 139, which amends the Occupations Code §55.004.

Section 301.151 addresses the Board's rulemaking authority. Section 55.004 addresses residency requirements for license eligibility for military spouse applicants.

Cross Reference To Statute. The following statutes are affected by this proposal: the Occupations Code §301.151 and §55.004.

§217.5.Temporary License and Endorsement

(a) - (g) (No change).

(h) Out-of-State Licensure of Military Spouse.

(1) Pursuant to Texas Occupations Code §55.0041, a military spouse is eligible to practice nursing in Texas if the military spouse:

(A) (No change.)

(B) submits [proof of the military spouse's residency in Texas and] a copy of the spouse's military identification card;

(C) - (D) (No change.)

(2) - (4) (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 December 21, 2021.

TRD-202105189

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: February 6, 2022

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


CHAPTER 228. PAIN MANAGEMENT

22 TAC §228.1

The Texas Board of Nursing (Board) proposes amendments to §228.1, relating to Standards of Practice. The amendments are being proposed under the authority of the Occupations Code §301.151 and Chapters 157 and 168.

Background. In April 2018, and in accordance with the Government Code §2001.039, the Texas Board of Nursing (Board) filed a notice of intention to review and consider for re-adoption, re-adoption with amendments, or repeal, §228.1 contained in Title 22, Part 11, of the Texas Administrative Code, pursuant to the 2015 rule review plan adopted by the Board at its July 2015 meeting. The proposed rule review was published in the Texas Register on April 6, 2018, (43 TexReg 2167) for public comment. Written comments were received from the APRN Alliance (Alliance). The Board considered the written comments at its July 2018 meeting and charged the Board's Advanced Practice Nursing Advisory Committee (APNAC) with reviewing the written comments and making recommendations to the Board regarding amendments to §228.1. The APNAC met on December 10, 2018, to consider the Board's charge. At its October 2021 Board meeting, the Board considered the Alliance's written comments; the APNAC's recommendations regarding amendments to §228.1; and Board Staff's recommendations regarding amendments to the rule. The Board decided to make some, but not all, of the Alliance's suggested changes to the rule. The Board re-adopted §228.1 without changes in the November 26, 2021, edition of the Texas Register to complete the outstanding rule review and is now proposing amendments to §228.1 to address some of the Alliance's written comments in this separate proposal.

Summary of Comments Received

The Alliance requested clarification regarding whether the rule applied to the management of chronic pain, acute pain, or both. The Alliance also requested that subsection (i)(1) and (2) be amended so as not to apply to advanced practice registered nurses (APRNs) for consistency with the Occupations Code Chapter 168. Finally, the Alliance recommended reversing the order of subsections (i)(4) and (5) for additional clarity in the rule.

Board Response

With regard to the Alliance's first comment, §228.1 applies to the provision of pain management services, which includes the treatment of both chronic and acute pain. This was an intentional choice by the Board when §228.1 was first adopted in 2014 (39 TexReg 989). The adopted standards were intended to protect patients and the public from inappropriate, non-therapeutic, non-evidenced based, and dangerous treatment practices in the context of pain management, which includes both chronic and acute pain. Further, the APNAC recognized, and the Board agreed, that the text of the rule includes the phrase "as appropriate" in subsections (c) - (f), which allows for appropriate flexibility in the applicability of the rule's requirements to the individualized treatment of pain and practice settings. Additionally, a practitioner's reported conduct will be examined in light of the current prevailing standard of care, which the APNAC determined, and the Board agrees is appropriately reflected by the text of the current rule. As such, the APNAC did not recommend making any changes to the rule with regard to clarifying the applicability of the rule to chronic or acute pain. The Board agreed with the recommendations of the APNAC and declined to make amendments to the rule in this regard in response to written comments. However, the Board has determined that some amendments are necessary to subsection (i) of the rule in response to the Alliance's written comments, as well as recent changes to the Occupations Code Chapter 168.

Subsection (i) applies to pain management clinics, as that term is defined in the Occupations Code §168.001. The Occupations Code §168.201(c) requires the owner or operator of a pain management clinic to be on-site at the clinic at least 33% of the clinic's total number of operating hours and to review at least 33% of the total number of patient files of the clinic, including the patient files of a clinic employee or contractor to whom authority for patient care has been delegated by the clinic. The original enactment of §228.1 made these requirements applicable to APRNs. The owner or operator of a pain management clinic, as defined by statute, does not include an APRN.

Section 228.1 was originally enacted during the height of the operation of pill mills, and the Board received complaints involving clinics where APRNs were working without any physician involvement, in some cases with no delegation agreement or physician collaboration. Requiring on-site presence and additional chart review was intended, at that time, to ensure appropriate delegation and collaboration in the interest of patient safety. Since the enactment of the rule, however, the Board has seen a reduction in pill mill activity due to increased enforcement efforts, regulation of schedule II medications, and increased awareness at both the state and federal level. Further, APRNs who prescribe are currently required by the Occupations Code Chapter 157 to meet prescriptive authority agreement and chart review requirements with their delegating physicians. Those requirements still apply to APRNs working in pain management clinics. Based on these factors, the APNAC felt the requirements in §228.1 for additional chart review were unnecessarily duplicative. Further, the APNAC felt that requiring an APRN to be on-site with a physician at a pain management clinic more often than what was required by statute would be overly restrictive and unlikely to promote a safer patient environment. As such, the APNAC recommended striking subsections (i)(1) and (2) from the rule. The Board agrees with the recommendations of the APNAC in this regard and proposes striking these subsections from the rule for these reasons.

Finally, the APNAC recommended reversing the order of subsections (i)(4) and (5) for additional clarity as suggested by the Alliance and adding the phrase "otherwise would" to subsection (i)(4) to further clarify the applicable statutory exemption. However, since the APNAC's meeting in 2018, the Occupations Code §168.002 was amended in September 2019 by House Bill (HB) 3285 to eliminate the prior exemption from which subsection (i)(4) was derived. Under the prior law, a clinic owned or operated by an APRN who treated patients in the nurse's area of specialty and who personally used other forms of treatment with the issuance of a prescription for a majority of the patient was exempt from the requirements of the chapter. HB 3285 eliminated that exemption from the statute. For consistency with this statutory change, the Board proposes eliminating (i)(4) from the rule in its entirety. Additionally, the Board proposes minor editorial changes to subsection (i)(5) for additional clarity in the rule text.

Section by Section Overview. The proposed amendments to §228.1(i) eliminate existing paragraphs (1), (2), and (4) from the subsection and re-arrange the remainder of the subsection accordingly. The proposed amendment to §228.1(i)(5) clarifies that an APRN cannot own or operate a pain management clinic that is subject to the certification requirements of the Occupations Code Chapter 168.

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 eliminate duplicative and unnecessarily restrictive requirements and are consistent with recent changes made by HB 3285. There are no anticipated costs of compliance with the proposal. First, the proposal only applies to APRNs that work in a pain management clinic, as that term is defined by the Occupations Code §168.001. For these APRNs, the proposed amendments may result in a cost benefit. Because the proposal removes the restrictive requirements related to additional chart review and on site presence with the APRN's delegating physician, an APRN may have additional time and resources to devote to other patient care and staff activities. The APRN will still be required to meet the existing prescriptive authority agreement and chart review requirements in the Occupations Code Chapter 157, but will no longer be required to meet the additional requirements of subsections (i)(4) and (5).

Costs Under the Government Code §2001.0045. The Government Code §2001.0045 prohibits agencies from adopting a rule that imposes costs on regulated persons unless the agency repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule or amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. Pursuant to §2001.0045(c)(9), this prohibition does not apply to a rule that is necessary to implement legislation, unless the legislature specifically states §2001.0045 applies to the rule. There are no anticipated costs of compliance with the proposal, and the proposal is necessary for consistency with the statutory amendments to the Occupations Code §168.002.

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, micro businesses, or rural communities, 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 communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Because there are no anticipated costs of compliance associated with the proposal, an economic impact statement and regulatory flexibility analysis is not required.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Texas Administration 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) the proposal is not expected to have an effect on current agency 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 affect the fees paid to the Board; (v) the proposal amends an existing regulation in order to implement the statutory requirements of HB 3285 and make changes that result in less restrictive and clear rules; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not extend to new entities not previously subject to the rule; and (viii) the proposal will not affect 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 this proposal should be submitted 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 Chapters 157 and 168, in particular §§168.001, 168.002, and 168.201.

Section 301.151 addresses the Board's rulemaking authority. Chapter 168 addresses the statutory requirements related to pain management clinics. Chapter 157 addresses physician delegation and prescriptive authority agreement requirements.

Cross Reference To Statute. The following statutes are affected by this proposal: the Occupations Code §301.151 and Chapters 157 and 168.

§228.1.Standards of Practice.

(a) - (h) (No change).

(i) Pain management clinics in the state of Texas. Prior to providing pain management services in these settings, APRNs who practice in pain management clinics shall verify that the clinic has been properly certified as a pain management clinic by the Texas Medical Board and that the certification is current.

[(1) The APRN shall be available on site with the physician at least 33 percent of a pain management clinic's total operating hours.]

[(2) The APRN shall comply with the requirements of §168.201, Occupations Code for review of 33 percent of patient charts in pain management clinics.]

(1) [(3)] The APRN shall ensure that s/he is in compliance with all other requirements for delegation of prescriptive authority for medications as set forth in Board rule.

[(4) An APRN who owns or operates a clinic in this state that meets the definition of a pain management clinic under this section is exempt from the certification requirements of the Occupations Code Chapter 168 and the Texas Medical Board if:]

[(A) the APRN is treating patients in the APRN's area of specialty; and]

[(B) the APRN personally uses other forms of treatment with the issuance of a prescription to the majority of the APRN's patients. A treatment under this subparagraph must be within the current standard of care, supported by evidence based research, and consistent with the treatment plan.]

(2) [(5)] APRNs shall not own or operate a pain management clinic. This prohibition does not apply to an APRN who owns or operates a clinic in this state that does not fall within [is exempt from] the certification requirements of the Occupations Code Chapter 168 and the Texas Medical 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 December 21, 2021.

TRD-202105188

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: February 6, 2022

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