Part 11.
TEXAS BOARD OF NURSING
Chapter 211.
GENERAL PROVISIONS
22 TAC §211.4
Introduction. The Texas Board of Nursing (Board)
proposes amendments to §211.4, concerning Officers. The amendments
are proposed under the authority of the Occupations Code §301.057(b)
and §301.151 and codify the Board's existing policies and practice
regarding the election of the Board's Vice President in rule.
At its January 2009 meeting, the Board appointed a four-member
Task Force to review the role and duties of the Board's Vice President.
The Task Force concluded its review and presented a report to the
full Board at its April 2009 Board meeting. In addition to making
recommendations regarding the responsibilities of the Vice President,
the Task Force recommended that the term of the Vice President be
extended from one year to two years. The Board accepted the recommendations
of the Task Force and authorized Board Staff to incorporate the Task
Force's recommendations into Board rules and policies. In April 2009,
the Board updated its policies to reflect that the Vice President
would be elected at the Board's October meeting, in even-numbered
years. Although 22 TAC §211.4 currently addresses the election
of the Vice President, the Board has determined that the rule should
be amended for consistency with the recommendations of the Task Force
and the Board's existing policies and practice. As such, the proposed
amendments specify that the term of the Vice President will be a two-year
term and that Board elections will be held biennially, based upon
the calendar year. The proposed amendments also prescribe procedures
in the event that the office of the Vice President becomes vacant
during any two-year term.
Section-by-Section Overview.
Proposed amended §211.4(a) provides that, during the last
meeting of the calendar year in even years, the Board will select
from among its membership a Vice President. Further, the term of the
vice president will be for two years. Proposed amended §211.4(a)
also provides that, if the office of Vice President becomes vacant
during a two-year term, the members of the Board will elect a new
Vice President from among its membership to serve for the remainder
of the term.
Fiscal Note.
Katherine Thomas, Executive Director, has determined that for each
year of the first five years the proposed amendments are in effect,
there will be no additional fiscal implications for state or local
government as a result of implementing the proposal.
Public Benefit/Cost Note.
Ms. Thomas has also determined that for each year of the first
five years the proposed amendments are in effect, there will be public
benefits. The anticipated public benefits will be the adoption of
requirements that are consistent with the Occupations Code §301.057(b)
and §301.151 and promote an orderly, fair, and transparent process
for the election of the Board's Vice President.
Potential Costs.
The proposed amendments codify the Board's policies and practice
regarding the election of its Vice President. The proposed amendments
do not impose any requirements or conditions on any applicant, licensee,
or Board regulated individual or entity. Therefore, the Board does
not anticipate there to be any compliance costs associated with the
proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses.
As required by the Government Code §2006.002(c) and (f), the
Board has determined that the proposed amendments will not have an
adverse economic effect on any individual, Board-regulated entity,
or other entity required to comply with the proposal because there
are no probable costs associated with the proposal.
Takings Impact Assessment.
The Board has determined that no private real property interests
are affected by this proposal and that this proposal does not restrict
or limit an owner's right to property that would otherwise exist in
the absence of government action and, therefore, does not constitute
a taking or require a takings impact assessment under the Government
Code §2007.043.
Request for Public Comment.
To be considered, written comments on the proposal or any request
for a public hearing must be submitted no later than 5:00 p.m. on
June 17, 2013, 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 Occupations Code §301.057(b)
and §301.151.
Section 301.057(b) provides that the Board shall elect other officers
from its members.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Cross Reference to Statute.
The following statutes are affected by this proposal: Occupations
Code §301.057 and §301.151.
§211.4.Officers.
(a)
Selections and appointments. In accordance with
the Texas Occupations Code §301.057, the Governor shall designate
one of the members of the board as presiding officer. During the last
meeting of the
calendar
[
(b)
(No change.)
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 6, 2013.
TRD-201301779
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
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. Specifically, the proposed amendments affect the Board's
Disciplinary Guidelines for Criminal Conduct (Guidelines), which are
incorporated by reference in §213.27(g). The amendments are proposed
under the authority of the Occupations Code §§301.151, 301.1545,
301.452, 301.4521, 301.453, 301.4531, and 301.4535; and the Occupations
Code Chapter 53, particularly §53.025(a), which requires licensing
agencies to issue guidelines that state the reasons that a particular
crime is considered to relate to the practice of the licensing agency
and any other criterion that affects the decision of the licensing
agency when considering the effects of the crime on an individual's
licensure status.
Background. The Guidelines were originally approved by the Board
and published in the
Texas Register
on
March 9, 2007 (32 TexReg 1409). The Board received no public comments
on the Guidelines and, on July 2, 2008, adopted the Guidelines by
reference in §213.27(g)(5) (33 TexReg 5007). The Guidelines have
not undergone formal review and amendment since their original publication
date in 2007. As a result, at its April 2012 meeting, the Board issued
a charge to the Eligibility and Disciplinary Advisory Committee (Committee)
to review and make recommendations regarding the Guidelines. In particular,
the Board charged the Committee with considering whether: (i) portions
of the Guidelines were outdated/obsolete; (ii) the Guidelines should
establish a minimally acceptable sanction for each criminal offense;
(iii) the recommended range of sanctions in the Guidelines were appropriate;
and (iv) the type and/or amount of mitigating evidence necessary to
support a more lenient sanction under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013; and March
25, 2013 to review the Guidelines. Following a detailed review and
discussion of the Guidelines, the Committee voted unanimously to recommend
several changes to the Board. The Committee's recommended changes
to the Guidelines, along with minor editorial/typographical changes
identified by Board Staff, were presented to the Board at its April
2013 meeting. The Board voted to adopt the Guidelines, as amended,
and propose amendments to §213.27(g) to incorporate the adopted
changes into rule.
Many of the changes to the Guidelines are editorial and organizational
in nature. However, some of the changes are more substantive. First,
thirty-five new criminal offenses have been added to the Guidelines.
These offenses include various felonies and misdemeanors, as well
as crimes that have been specifically identified by the Texas Legislature
in the Occupations Code §301.4535 as affecting nursing licensure.
The additional crimes include: continuous sexual abuse of young child
or children (§301.4535(a)(5)); offenses for which registration
as a sex offender is required under the Code of Criminal Procedure
Chapter 62 (§301.4535(a)(16)); aggravated perjury (felony); bail
jumping and failure to appear (felony/misdemeanor); bribery (felony);
burglary of vehicles (felony/misdemeanor); credit card/debit card
abuse (felony); criminal nonsupport (felony); driving while intoxicated
with child passenger (felony); evading arrest or detention (felony/misdemeanor);
failure to identify (misdemeanor); fraudulent destruction, removal,
or concealment of writing (felony/misdemeanor); fraudulent use of
possession of identifying information (felony); harboring runaway
child (misdemeanor); hindering apprehension or prosecution (felony/misdemeanor);
hindering secured creditors (felony/misdemeanor); interference with
child custody (felony); intoxication assault (felony); intoxication
manslaughter (felony); misapplication of fiduciary property or property
of financial institution (felony/misdemeanor); obstruction or retaliation
(felony); perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misdemeanor);
public lewdness (misdemeanor); securing execution of document by deception
(felony/misdemeanor); smuggling of persons (felony); tampering with
or fabricating physical evidence (felony/misdemeanor); tampering with
witness (felony); theft of service (felony/misdemeanor); trafficking
of persons (felony); unlawful carrying weapon (felony/misdemeanor);
unlawful possession of firearm (felony/misdemeanor); unlawful restraint
(misdemeanor); and violation of civil rights of person in custody/improper
sexual acts with a person in custody (felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nursing Practice
Act), criminal offenses may affect an individual's ability to obtain
a nursing license (licensure eligibility) and a nurse's licensure
status (licensure discipline). Board Staff routinely review individuals'
criminal history to determine what effect, if any, a particular offense
may have in eligibility and disciplinary cases. The thirty-five new
offenses that were recommended by the Committee and approved by the
Board are offenses that Board Staff have identified over the last
few years during its review of eligibility and disciplinary files.
These offenses have occurred frequently enough over the last few years
to warrant inclusion in the Guidelines. Further, the Board has determined
that these additional offenses are sufficiently related to the practice
of nursing and are serious enough in nature to warrant investigation
and, possibly, denial of licensure and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory rationale has
been included as well. For example, the felony offense of intoxication
manslaughter has been added to the Guidelines. As stated in the Guideline's
preamble, although the Guidelines provide a recommended range of sanctions
for each offense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined upon
a consideration of the aggravating and/or mitigating factors present
in that case. For the offense of felony intoxication manslaughter,
and depending upon the length of time that has transpired since the
judicial order associated with the offense was issued, the recommended
sanction range includes licensure denial or revocation, as well as
options for licensure discipline. The remaining additional offenses
that have been added to the Guidelines also include a corresponding
recommended range of sanctions that will include an analysis of the
mitigating and/or aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous example,
criminal offenses involving alcohol and/or drugs, such as felony intoxication
manslaughter, may indicate that an individual has a chemical dependency
and/or substance abuse issue. Chemical dependency and/or substance
abuse may affect an individual's professional judgment and ability
to practice nursing with reasonable skill and safety. As such, the
Board is concerned about such conduct, and an individual with this
criminal history may be subject to a Board investigation to determine
what effect, if any, the offense will have on the individual's licensure
status. The remaining additional offenses that have been added to
the Guidelines also include an explanation of how the offense relates
to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Occupations
Code §301.4521, the Board is authorized to require certain physical
and/or psychological evaluations of its applicants and licensees.
In the present example regarding the felony offense of intoxication
manslaughter, the Guidelines specify that a chemical dependency evaluation
may be required to assist the Board in determining the effect of the
individual's criminal history on his/her licensure status. Although §301.4521
authorizes the Board to require and/or request physical and psychological
evaluations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable skill
and safety, additional notations have been added throughout the Guidelines
to indicate the types of evaluations that the Board may request/require
in matters involving a particular criminal offense. Although this
additional information does not limit the Board's ability to require/request
additional types of evaluations in a particular case, it is intended
to provide notice to individuals that an evaluation may be required
and/or requested in order to assist the Board in determining whether
the individual is fit to practice nursing safely and the potential
effect the particular criminal offense may have on the individual's
licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended to include
additional information regarding the application of the Guidelines.
The Guidelines are intended to inform applicants, licensees, and the
general public of the potential effect a particular criminal offense
may have on nurse licensure. As such, the Guidelines are based upon
criminal offenses that have already been addressed and/or adjudicated
by the penal system. The Board will not re-litigate the underlying
facts of the criminal matter. Therefore, the amended language makes
clear that the Board will consider the potential effect of a criminal
offense upon an individual's licensure status as that offense has
been previously determined by the penal system.
For certain offense, the Committee also recommended including additional
information in the last column of the Guidelines to better explain
the offense's connection to the practice of nursing. For example,
for the offenses of "arson" and "cruelty to animals," information
has been added to the last column of the Guidelines to emphasize that
individuals who commit these types of criminal offenses have been
linked with underlying psychopathology and/or may be more likely to
engage in violent/harmful behaviors toward humans. This additional
information clarifies why the Board may be concerned about an individual
who has committed one of these offenses. "Aggravated perjury" and
all of the prostitution offenses also include additional language
better explaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanction for
each offense listed in the Guidelines. Although the Committee felt
that the recommended ranges of sanctions were appropriate for the
majority of the offenses, the Committee recommended that offenses
primarily related to the use of drugs and/or alcohol be amended to
include less severe sanctions if the individual demonstrates compliance
with a treatment program and evidence of ongoing sobriety. Therefore,
the Guidelines have been amended to include a broader range of recommended
sanctions for these types of offenses. In particular, the amended
range of sanctions for these types of offenses includes participation
in a peer assistance program, as well as licensure suspension, which
can either be enforced or probated, depending upon whether an individual
is able to demonstrate twelve consecutive months of verifiable sobriety.
These additional options are consistent with the Board's adopted Eligibility
and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or Other Substance Use Disorder, as well as
the Board's rules regarding chemical dependency and substance abuse.
The Guidelines have also been amended to clarify the use of certain
terminology within the Guidelines. In particular, the term "judicial
order" has been amended to include orders of conviction, regardless
of the plea entered, deferred adjudications, regardless of the plea
entered, and deferred dispositions, including, but not limited to,
pre-trial diversion agreements and deferred prosecutions. Further,
the term "probation" has been amended to include community supervision,
probation, parole, and any other requirement that results from, or
is related to, a criminal disposition of any form, including deferred
dispositions, such as pre-trial diversion agreements and deferred
prosecutions. These amendments are intended to clarify the existing
intent of the Guidelines and are consistent with the Board's authority
to investigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act, particularly §301.452(b)(3).
Finally, the Guidelines have been re-organized based upon recommendations
by the Committee. Pages 4 - 14 of the Guidelines contain offenses
that have been specifically identified by the Texas Legislature in
the Occupations Code §301.4535 as revocable offenses and/or potential
bars to licensure. Pursuant to the terms of §301.4535, an individual
who has committed one of the crimes enumerated in §301.4535 shall
not be eligible to hold a nursing license until at least five years
have passed from the date the individual successfully completes and
is dismissed from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both felony
and misdemeanor offenses. If an offense can be classified under the
penal code as either a felony or misdemeanor, the Guidelines recognize
this distinction and include a corresponding range of recommended
sanctions for the felony offense and the misdemeanor offense. The
Committee also recommended including the definition of each crime
in the first column of the Guidelines instead of the last column of
the Guidelines. As such, the Guidelines have been amended to include
a general definition, based upon the elements listed in the penal
code, for each offense listed in the Guidelines. A legend has also
been added to the second column of the Guidelines that will link a
user to the penal code definitions and classifications of the terms
"felonies" and "misdemeanors". Hyperlinks have also been added to
the third column of the Guidelines that will link a user to the specific
penal code provisions cited by the Guidelines for each criminal offense.
These changes were recommended by the Committee and adopted by the
Board in order to make the Guidelines more user friendly and easier
to understand and navigate.
The amended Guidelines, which are incorporated by reference into
this rule proposal, are published in the "In Addition" section of
this issue of the
Texas Register.
Section-by-Section Overview. Proposed amended §213.27(g)(5)
provides that the amended Guidelines must be used by the Executive
Director, the State Office of Administrative Hearings (SOAH), and
the Board in evaluating good professional character in eligibility
and disciplinary matters.
Fiscal Note. Katherine Thomas, Executive Director, has determined
that for each year of the first five years the proposed amendments
are in effect, there will be no additional fiscal implications for
state or local government as a result of implementing the proposal.
Public Benefit/Cost Note. Ms. Thomas has also determined that for
each year of the first five years the proposed amendments are in effect,
there will be public benefits. The anticipated public benefits will
be the adoption of requirements that implement the provisions of the
Occupations Code Chapters 53 and 301 and promote fairness, consistency,
efficiency, and predictability in Board decisions regarding eligibility
and disciplinary matters.
The proposed amendments incorporate the use of the Guidelines in
eligibility and disciplinary matters before the Board. In particular,
the proposed amendments incorporate the use of the Guidelines in determining
an individual's good professional character, which an individual must
possess in order to obtain or retain a nursing license. The Guidelines
identify specific criminal offenses that are of concern to the Board,
as well as provide notice of the potential consequences of these criminal
offenses to licensees and the general public. Providing advance notice
of the potential consequences of such conduct promotes fair, consistent,
and efficient regulation and helps ensure consistency among Board
decisions in eligibility and disciplinary matters for similarly situated
individuals.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposed amendments incorporate the Guidelines into Board rule.
The Guidelines provide notice to applicants, licensees, and the general
public of the potential consequences of a criminal offense on an individual's
nursing licensure status. The proposed amendments require the Executive
Director, SOAH, and the Board to utilize the Guidelines in evaluating
good professional character in eligibility and disciplinary matters.
However, the Guidelines do not impose any requirements or conditions
on any applicant, licensee, or Board regulated individual or entity.
Therefore, the Board does not anticipate there to be any compliance
costs associated with the proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses. As required by the Government Code §2006.002(c)
and (f), the Board has determined that the proposed amendments will
not have an adverse economic effect on any individual, Board regulated
entity, or other entity required to comply with the proposal because
there are no probable costs associated with the proposal.
Takings Impact Assessment. The Board has determined that no private
real property interests are affected by this proposal and that this
proposal does not restrict or limit an owner's right to property that
would otherwise exist in the absence of government action and, therefore,
does not constitute a taking or require a takings impact assessment
under the Government Code §2007.043.
Request for Public Comment. To be considered, written comments
on the proposal or any request for a public hearing must be submitted
no later than 5:00 p.m. on June 17, 2013, 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 Occupations Code Chapter
53 and §§301.151, 301.1545, 301.452, 301.4521, 301.453,
301.4531, and 301.4535.
Section 53.021(a) provides that a licensing authority may suspend
or revoke a license, disqualify a person from receiving a license,
or deny to a person the opportunity to take a licensing examination
on the grounds that the person has been convicted of: (i) an offense
that directly relates to the duties and responsibilities of the licensed
occupation; (ii) an offense that does not directly relate to the duties
and responsibilities of the licensed occupation and that was committed
less than five years before the date the person applies for the license;
(iii) an offense listed in Section 3g, Article 42.12, Code of Criminal
Procedure; or (iv) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
Section 53.021(b) states that a license holder's license shall
be revoked on the license holder's imprisonment following a felony
conviction, felony community supervision revocation, revocation of
parole, or revocation of mandatory supervision.
Section 53.021(c) states that, except as provided by §53.021(d)
and (e), notwithstanding any other law, a licensing authority may
not consider a person to have been convicted of an offense for purposes
of §53.021 if, regardless of the statutory authorization: (i)
the person entered a plea of guilty or nolo contendere; (ii) the judge
deferred further proceedings without entering an adjudication of guilt
and placed the person under the supervision of the court or an officer
under the supervision of the court; and (iii) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
Section 53.021(d) provides that a licensing authority may consider
a person to have been convicted of an offense for purposes of §53.021
regardless of whether the proceedings were dismissed and the person
was discharged as described by §53.021(c) if, after consideration
of the factors described by §53.022 and §53.023(a), the
licensing authority determines that: (i) the person may pose a continued
threat to public safety; or (ii) employment of the person in the licensed
occupation would create a situation in which the person has an opportunity
to repeat the prohibited conduct.
Section 53.021(e) states that §53.021(c) does not apply if
the person is an applicant for or the holder of a license that authorizes
the person to provide: (i) law enforcement or public health, education,
or safety services; or (ii) financial services in an industry regulated
by a person listed in §411.081(i)(19), Government Code.
Section 53.022 provides that, in determining whether a criminal
conviction directly relates to an occupation, the licensing authority
shall consider: (i) the nature and seriousness of the crime; (ii)
the relationship of the crime to the purposes for requiring a license
to engage in the occupation; (iii) the extent to which a license might
offer an opportunity to engage in further criminal activity of the
same type as that in which the person previously had been involved;
and (iv) the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
of the licensed occupation.
Section 53.023(a) states that, in determining the fitness to perform
the duties and discharge the responsibilities of the licensed occupation
of a person who has been convicted of a crime, the licensing authority
shall consider, in addition to the factors listed in §53.022:
(i) the extent and nature of the person's past criminal activity;
(ii) the age of the person when the crime was committed; (iii) the
amount of time that has elapsed since the person's last criminal activity;
(iv) the conduct and work activity of the person before and after
the criminal activity; (v) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release; and
(vi) other evidence of the person's fitness, including letters of
recommendation from: (A) prosecutors and law enforcement and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person; (B) the sheriff or chief of police in the community
where the person resides; and (C) any other person in contact with
the convicted person.
Section 53.023(b) states that the applicant has the responsibility,
to the extent possible, to obtain and provide to the licensing authority
the recommendations of the prosecution, law enforcement, and correctional
authorities as required by §53.023(a)(6).
Section 53.023(c) states that in addition to fulfilling the requirements
of §53.023(b), the applicant shall furnish proof in the form
required by the licensing authority that the applicant has: (i) maintained
a record of steady employment; (ii) supported the applicant's dependents;
(iii) maintained a record of good conduct; and (iv) paid all outstanding
court costs, supervision fees, fines, and restitution ordered in any
criminal case in which the applicant has been convicted.
Section 53.025(a) states that each licensing authority shall issue
guidelines relating to the practice of the licensing authority under
Chapter 53. Further, the guidelines must state the reasons a particular
crime is considered to relate to a particular license and any other
criterion that affects the decisions of the licensing authority.
Section 53.025(b) states that a state licensing authority that
issues guidelines under §53.025 shall file the guidelines with
the secretary of state for publication in the
Texas
Register.
Section 53.025(c) states that a local or county licensing authority
that issues guidelines under §53.025 shall post the guidelines
at the courthouse for the county in which the licensing authority
is located or publish the guidelines in a newspaper having countywide
circulation in that county.
Section 53.025(d) provides that amendments to the guidelines, if
any, shall be issued annually.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Section 301.1545(a) provides that the Board shall adopt rules and
guidelines necessary to comply with Chapter 53, except to the extent
the requirements of Subtitle E are stricter than the requirements
of Chapter 53.
Section 301.1545(b) states that, in its rules under §301.1545,
the Board shall list the offenses for which a conviction would constitute
grounds for the Board to take action under §53.021 or for which
placement on deferred adjudication community supervision would constitute
grounds for the Board to take action under Chapter 301.
Section 301.452(a) defines intemperate use to include practicing
nursing or being on duty or on call while under the influence of alcohol
or drugs.
Section 301.452(b) provides that a person is subject to denial
of a license or to disciplinary action under Subchapter J for: (i)
a violation of Chapter 301, a rule or regulation not inconsistent
with Chapter 301, or an order issued under Chapter 301; (ii) fraud
or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (iii) a conviction for,
or placement on deferred adjudication community supervision or deferred
disposition for, a felony or for a misdemeanor involving moral turpitude;
(iv) conduct that results in the revocation of probation imposed because
of conviction for a felony or for a misdemeanor involving moral turpitude;
(v) use of a nursing license, diploma, or permit, or the transcript
of such a document, that has been fraudulently purchased, issued,
counterfeited, or materially altered; (vi) impersonating or acting
as a proxy for another person in the licensing examination required
under §301.253 or §301.255; (vii) directly or indirectly
aiding or abetting an unlicensed person in connection with the unauthorized
practice of nursing; (viii) revocation, suspension, or denial of,
or any other action relating to, the person's license or privilege
to practice nursing in another jurisdiction; (ix) intemperate use
of alcohol or drugs that the Board determines endangers or could endanger
a patient; (x) unprofessional or dishonorable conduct that, in the
Board's opinion, is likely to deceive, defraud, or injure a patient
or the public; (xi) adjudication of mental incompetency; (xii) lack
of fitness to practice because of a mental or physical health condition
that could result in injury to a patient or the public; or (xiii)
failure to care adequately for a patient or to conform to the minimum
standards of acceptable nursing practice in a manner that, in the
Board's opinion, exposes a patient or other person unnecessarily to
risk of harm.
Section 301.452(c) provides that the Board may refuse to admit
a person to a licensing examination for a ground described under §301.452(b).
Section 301.452(d) provides that the Board by rule shall establish
guidelines to ensure that any arrest information, in particular information
on arrests in which criminal action was not proven or charges were
not filed or adjudicated, that is received by the Board under §301.452
is used consistently, fairly, and only to the extent the underlying
conduct relates to the practice of nursing.
Section 301.4521(a) defines the term "applicant" as a petitioner
for a declaratory order of eligibility for a license or an applicant
for an initial license or renewal of a license and the term "evaluation"
as a physical or psychological evaluation conducted to determine a
person's fitness to practice nursing.
Section 301.4521(b) provides that the Board may require a nurse
or applicant to submit to an evaluation only if the Board has probable
cause to believe that the nurse or applicant is unable to practice
nursing with reasonable skill and safety to patients because of: (i)
physical impairment; (ii) mental impairment; or (iii) chemical dependency
or abuse of drugs or alcohol.
Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b)
must be in writing and state: (i) the reasons probable cause exists
to require the evaluation; and (ii) that refusal by the nurse or applicant
to submit to the evaluation will result in an administrative hearing
to be held to make a final determination of whether probable cause
for the evaluation exists.
Section 301.4521(d) states that, if the nurse or applicant refuses
to submit to the evaluation, the Board shall schedule a hearing on
the issue of probable cause to be conducted by SOAH. The nurse or
applicant must be notified of the hearing by personal service or certified
mail. The hearing is limited to the issue of whether the Board had
probable cause to require an evaluation. The nurse or applicant may
present testimony and other evidence at the hearing to show why the
nurse or applicant should not be required to submit to the evaluation.
The Board has the burden of proving that probable cause exists. At
the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the Board's demand for an evaluation. The order
may not be vacated or modified under the Government Code §2001.058.
Section 301.4521(e) states that, if a nurse or applicant refuses
to submit to an evaluation after an order requiring the evaluation
is entered under §301.4521(d), the Board may: (i) refuse to issue
or renew a license; (ii) suspend a license; or (iii) issue an order
limiting the license.
Section 301.4521(f) provides that the Board may request a nurse
or applicant to consent to an evaluation by a practitioner approved
by the Board for a reason other than a reason listed in §301.4521(b).
A request for an evaluation under §301.4521(f) must be in writing
and state: (i) the reasons for the request; (ii) the type of evaluation
requested; (iii) how the Board may use the evaluation; (iv) that the
nurse or applicant may refuse to submit to an evaluation; and (v)
the procedures for submitting an evaluation as evidence in any hearing
regarding the issuance or renewal of the nurse's or applicant's license.
Section 301.4521(g) states that, if a nurse or applicant refuses
to consent to an evaluation under §301.4521(f), the nurse or
applicant may not introduce an evaluation into evidence at a hearing
to determine the nurse's or applicant's right to be issued or retain
a nursing license unless the nurse or applicant: (i) not later than
the 30th day before the date of the hearing, notifies the Board that
an evaluation will be introduced into evidence at the hearing; (ii)
provides the Board the results of that evaluation; (iii) informs the
Board of any other evaluations by any other practitioners; and (iv)
consents to an evaluation by a practitioner that meets Board standards
established under §301.4521(h).
Section 301.4521(h) provides that the Board shall establish by
rule the qualifications for a licensed practitioner to conduct an
evaluation under §301.4521. The Board shall maintain a list of
qualified practitioners. The Board may solicit qualified practitioners
located throughout the state to be on the list.
Section 301.4521(i) states that a nurse or applicant shall pay
the costs of an evaluation conducted under §301.4521.
Section 301.4521(j) provides that the results of an evaluation
under §301.4521 are: (i) confidential and not subject to disclosure
under the Government Code Chapter 552; (ii) not subject to disclosure
by discovery, subpoena, or other means of legal compulsion for release
to anyone, except that the results may be: (A) introduced as evidence
in a proceeding before the Board or a hearing conducted by SOAH under
Chapter 301; or (B) included in the findings of fact and conclusions
of law in a final Board order.
Section 301.4521(k) provides that, if the Board determines there
is insufficient evidence to bring action against a person based on
the results of any evaluation under §301.4521, the evaluation
must be expunged from the Board's records.
Section 301.4521(l) requires the Board to adopt guidelines for
requiring or requesting a nurse or applicant to submit to an evaluation
under §301.4521.
Section 301.4521(m) states that the authority granted to the Board
under §301.4521 is in addition to the Board's authority to make
licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that
a person has committed an act listed in §301.452(b), the Board
shall enter an order imposing one or more of the following: (i) denial
of the person's application for a license, license renewal, or temporary
permit; (ii) issuance of a written warning; (iii) administration of
a public reprimand; (iv) limitation or restriction of the person's
license, including limiting to or excluding from the person's practice
one or more specified activities of nursing or stipulating periodic
Board review; (v) suspension of the person's license for a period
not to exceed five years; (vi) revocation of the person's license;
or (vii) assessment of a fine.
Section 301.453(b) provides that, in addition to or instead of
an action under §301.453(a), the Board, by order, may require
the person to: (i) submit to care, counseling, or treatment by a health
provider designated by the Board as a condition for the issuance or
renewal of a license; (ii) participate in a program of education or
counseling prescribed by the Board; (iii) practice for a specified
period under the direction of a registered nurse or vocational nurse
designated by the Board; or (iv) perform public service the Board
considers appropriate.
Section 301.453(c) provides that the Board may probate any penalty
imposed on a nurse and may accept the voluntary surrender of a license.
The Board may not reinstate a surrendered license unless it determines
that the person is competent to resume practice.
Section 301.453(d) states that if the Board suspends, revokes,
or accepts surrender of a license, the Board may impose conditions
for reinstatement that the person must satisfy before the Board may
issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a
schedule of the disciplinary sanctions that the Board may impose under
Chapter 301. In adopting the schedule of sanctions, the Board shall
ensure that the severity of the sanction imposed is appropriate to
the type of violation or conduct that is the basis for disciplinary
action.
Section 301.4531(b) states, in determining the appropriate disciplinary
action, including the amount of any administrative penalty to assess,
the Board shall consider: (i) whether the person is being disciplined
for multiple violations of either Chapter 301 or a rule or order adopted
under Chapter 301 or has previously been the subject of disciplinary
action by the Board and has previously complied with Board rules and
Chapter 301; (ii) the seriousness of the violation; (iii) the threat
to public safety; and (iv) any mitigating factors.
Section 301.4531(c) provides that, in the case of a person described
by §301.4531(b)(1)(A), the Board shall consider taking a more
severe disciplinary action, including revocation of the person's license,
than the disciplinary action that would be taken for a single violation;
and in the case of a person described by §301.4531(b)(1)(B),
the Board shall consider taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action that would be taken for a person who has not previously been
the subject of disciplinary action by the Board.
Section 301.4535(a) provides that the Board shall suspend a nurse's
license or refuse to issue a license to an applicant on proof that
the nurse or applicant has been initially convicted of: (i) murder
under Section 19.02, Penal Code, capital murder under Section 19.03,
Penal Code, or manslaughter under Section 19.04, Penal Code; (ii)
kidnapping or unlawful restraint under Chapter 20, Penal Code, and
the offense was punished as a felony or state jail felony; (iii) sexual
assault under Section 22.011, Penal Code; (iv) aggravated sexual assault
under Section 22.021, Penal Code; (v) continuous sexual abuse of young
child or children under Section 21.02, Penal Code, or indecency with
a child under Section 21.11, Penal Code; (vi) aggravated assault under
Section 22.02, Penal Code; (vii) intentionally, knowingly, or recklessly
injuring a child, elderly individual, or disabled individual under
Section 22.04, Penal Code; (viii) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(ix) aiding suicide under Section 22.08, Penal Code, and the offense
was punished as a state jail felony; (x) an offense under Section
25.07, Penal Code, punished as a felony; (xi) an offense under Section
25.071, Penal Code, punished as a felony; (xii) an agreement to abduct
a child from custody under Section 25.031, Penal Code; (xiii) the
sale or purchase of a child under Section 25.08, Penal Code; (xiv)
robbery under Section 29.02, Penal Code; (xv) aggravated robbery under
Section 29.03, Penal Code; (xvi) an offense for which a defendant
is required to register as a sex offender under Chapter 62, Code of
Criminal Procedure; or (xvii) an offense under the law of another
state, federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense
listed in this subsection.
Section 301.4535(a-1) states that an applicant or nurse who is
refused an initial license or renewal of a license or whose license
is suspended under §301.4535(a) is not eligible for a probationary,
stipulated, or otherwise encumbered license unless the Board establishes
by rule criteria that would permit the issuance or renewal of the
license.
Section 301.4535(b) states that on final conviction or a plea of
guilty or nolo contendere for an offense listed in §301.4535(a),
the Board, as appropriate, may not issue a license to an applicant,
shall refuse to renew a license, or shall revoke a license.
Section 301.4535(c) states that a person is not eligible for an
initial license or for reinstatement or endorsement of a license to
practice nursing in this state before the fifth anniversary of the
date the person successfully completed and was dismissed from community
supervision or parole for an offense described by §301.4535(a).
Cross Reference to Statute.
The following statutes are affected by this proposal: the Occupations
Code Chapter 53 and §§301.151, 301.1545, 301.452, 301.4521,
301.453, 301.4531, and 301.4535.
§213.27.Good Professional Character.
(a) - (f)
(No change.)
(g)
The following disciplinary and eligibility sanction
policies and guidelines shall be used by the Executive Director, the
State Office of Administrative Hearings (SOAH),
and
[
(1) - (4)
(No change.)
(5)
Disciplinary Guidelines for Criminal Conduct approved
by the Board and published [
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 3, 2013.
TRD-201301762
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
For further information, please call: (512) 305-6822
22 TAC §213.28
Introduction. The Texas Board of Nursing (Board)
proposes amendments to §213.28, concerning Licensure of Persons
with Criminal Offenses. Specifically, the proposed amendments affect
the Board's Disciplinary Guidelines for Criminal Conduct (Guidelines),
which are incorporated by reference in §213.28(m). The amendments
are proposed under the authority of the Occupations Code §§301.151,
301.1545, 301.452, 301.4521, 301.453, 301.4531, and 301.4535; and
the Occupations Code Chapter 53, particularly §53.025(a), which
requires licensing agencies to issue guidelines that state the reasons
that a particular crime is considered to relate to the practice of
the licensing agency and any other criterion that affects the decision
of the licensing agency when considering the effects of the crime
on an individual's licensure status.
Background. The Guidelines were originally approved by the Board
and published in the
Texas Register
on
March 9, 2007 (32 TexReg 1409). The Board received no public comments
on the Guidelines and, on July 2, 2008, adopted the Guidelines by
reference in §213.28(m)(5) (33 TexReg 5007). The Guidelines have
not undergone formal review and amendment since their original publication
date in 2007. As a result, at its April 2012 meeting, the Board issued
a charge to the Eligibility and Disciplinary Advisory Committee (Committee)
to review and make recommendations regarding the Guidelines. In particular,
the Board charged the Committee with considering whether: (i) portions
of the Guidelines were outdated/obsolete; (ii) the Guidelines should
establish a minimally acceptable sanction for each criminal offense;
(iii) the recommended range of sanctions in the Guidelines were appropriate;
and (iv) the type and/or amount of mitigating evidence necessary to
support a more lenient sanction under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013; and March
25, 2013 to review the Guidelines. Following a detailed review and
discussion of the Guidelines, the Committee voted unanimously to recommend
several changes to the Board. The Committee's recommended changes
to the Guidelines, along with minor editorial/typographical changes
identified by Board Staff, were presented to the Board at its April
2013 meeting. The Board voted to adopt the Guidelines, as amended,
and propose amendments to §213.28(m) to incorporate the adopted
changes into rule.
Many of the changes to the Guidelines are editorial and organizational
in nature. However, some of the changes are more substantive. First,
thirty-five new criminal offenses have been added to the Guidelines.
These offenses include various felonies and misdemeanors, as well
as crimes that have been specifically identified by the Texas Legislature
in the Occupations Code §301.4535 as affecting nursing licensure.
The additional crimes include: continuous sexual abuse of young child
or children (§301.4535(a)(5)); offenses for which registration
as a sex offender is required under the Code of Criminal Procedure
Chapter 62 (§301.4535(a)(16)); aggravated perjury (felony); bail
jumping and failure to appear (felony/misdemeanor); bribery (felony);
burglary of vehicles (felony/misdemeanor); credit card/debit card
abuse (felony); criminal nonsupport (felony); driving while intoxicated
with child passenger (felony); evading arrest or detention (felony/misdemeanor);
failure to identify (misdemeanor); fraudulent destruction, removal,
or concealment of writing (felony/misdemeanor); fraudulent use of
possession of identifying information (felony); harboring runaway
child (misdemeanor); hindering apprehension or prosecution (felony/misdemeanor);
hindering secured creditors (felony/misdemeanor); interference with
child custody (felony); intoxication assault (felony); intoxication
manslaughter (felony); misapplication of fiduciary property or property
of financial institution (felony/misdemeanor); obstruction or retaliation
(felony); perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misdemeanor);
public lewdness (misdemeanor); securing execution of document by deception
(felony/misdemeanor); smuggling of persons (felony); tampering with
or fabricating physical evidence (felony/misdemeanor); tampering with
witness (felony); theft of service (felony/misdemeanor); trafficking
of persons (felony); unlawful carrying weapon (felony/misdemeanor);
unlawful possession of firearm (felony/misdemeanor); unlawful restraint
(misdemeanor); and violation of civil rights of person in custody/improper
sexual acts with a person in custody (felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nursing Practice
Act), criminal offenses may affect an individual's ability to obtain
a nursing license (licensure eligibility) and a nurse's licensure
status (licensure discipline). Board Staff routinely review individuals'
criminal history to determine what effect, if any, a particular offense
may have in eligibility and disciplinary cases. The thirty-five new
offenses that were recommended by the Committee and approved by the
Board are offenses that Board Staff have identified over the last
few years during its review of eligibility and disciplinary files.
These offenses have occurred frequently enough over the last few years
to warrant inclusion in the Guidelines. Further, the Board has determined
that these additional offenses are sufficiently related to the practice
of nursing and are serious enough in nature to warrant investigation
and, possibly, denial of licensure and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory rationale has
been included as well. For example, the felony offense of intoxication
manslaughter has been added to the Guidelines. As stated in the Guideline's
preamble, although the Guidelines provide a recommended range of sanctions
for each offense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined upon
a consideration of the aggravating and/or mitigating factors present
in that case. For the offense of felony intoxication manslaughter,
and depending upon the length of time that has transpired since the
judicial order associated with the offense was issued, the recommended
sanction range includes licensure denial or revocation, as well as
options for licensure discipline. The remaining additional offenses
that have been added to the Guidelines also include a corresponding
recommended range of sanctions that will include an analysis of the
mitigating and/or aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous example,
criminal offenses involving alcohol and/or drugs, such as felony intoxication
manslaughter, may indicate that an individual has a chemical dependency
and/or substance abuse issue. Chemical dependency and/or substance
abuse may affect an individual's professional judgment and ability
to practice nursing with reasonable skill and safety. As such, the
Board is concerned about such conduct, and an individual with this
criminal history may be subject to a Board investigation to determine
what effect, if any, the offense will have on the individual's licensure
status. The remaining additional offenses that have been added to
the Guidelines also include an explanation of how the offense relates
to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Occupations
Code §301.4521, the Board is authorized to require certain physical
and/or psychological evaluations of its applicants and licensees.
In the present example regarding the felony offense of intoxication
manslaughter, the Guidelines specify that a chemical dependency evaluation
may be required to assist the Board in determining the effect of the
individual's criminal history on his/her licensure status. Although §301.4521
authorizes the Board to require and/or request physical and psychological
evaluations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable skill
and safety, additional notations have been added throughout the Guidelines
to indicate the types of evaluations that the Board may request/require
in matters involving a particular criminal offense. Although this
additional information does not limit the Board's ability to require/request
additional types of evaluations in a particular case, it is intended
to provide notice to individuals that an evaluation may be required
and/or requested in order to assist the Board in determining whether
the individual is fit to practice nursing safely and the potential
effect the particular criminal offense may have on the individual's
licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended to include
additional information regarding the application of the Guidelines.
The Guidelines are intended to inform applicants, licensees, and the
general public of the potential effect a particular criminal offense
may have on nurse licensure. As such, the Guidelines are based upon
criminal offenses that have already been addressed and/or adjudicated
by the penal system. The Board will not re-litigate the underlying
facts of the criminal matter. Therefore, the amended language makes
clear that the Board will consider the potential effect of a criminal
offense upon an individual's licensure status as that offense has
been previously determined by the penal system.
For certain offense, the Committee also recommended including additional
information in the last column of the Guidelines to better explain
the offense's connection to the practice of nursing. For example,
for the offenses of "arson" and "cruelty to animals," information
has been added to the last column of the Guidelines to emphasize that
individuals who commit these types of criminal offenses have been
linked with underlying psychopathology and/or may be more likely to
engage in violent/harmful behaviors toward humans. This additional
information clarifies why the Board may be concerned about an individual
who has committed one of these offenses. "Aggravated perjury" and
all of the prostitution offenses also include additional language
better explaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanction for
each offense listed in the Guidelines. Although the Committee felt
that the recommended ranges of sanctions were appropriate for the
majority of the offenses, the Committee recommended that offenses
primarily related to the use of drugs and/or alcohol be amended to
include less severe sanctions if the individual demonstrates compliance
with a treatment program and evidence of ongoing sobriety. Therefore,
the Guidelines have been amended to include a broader range of recommended
sanctions for these types of offenses. In particular, the amended
range of sanctions for these types of offenses includes participation
in a peer assistance program, as well as licensure suspension, which
can either be enforced or probated, depending upon whether an individual
is able to demonstrate twelve consecutive months of verifiable sobriety.
These additional options are consistent with the Board's adopted Eligibility
and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or Other Substance Use Disorder, as well as
the Board's rules regarding chemical dependency and substance abuse.
The Guidelines have also been amended to clarify the use of certain
terminology within the Guidelines. In particular, the term "judicial
order" has been amended to include orders of conviction, regardless
of the plea entered, deferred adjudications, regardless of the plea
entered, and deferred dispositions, including, but not limited to,
pre-trial diversion agreements and deferred prosecutions. Further,
the term "probation" has been amended to include community supervision,
probation, parole, and any other requirement that results from, or
is related to, a criminal disposition of any form, including deferred
dispositions, such as pre-trial diversion agreements and deferred
prosecutions. These amendments are intended to clarify the existing
intent of the Guidelines and are consistent with the Board's authority
to investigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act, particularly §301.452(b)(3).
Finally, the Guidelines have been re-organized based upon recommendations
by the Committee. Pages 4 - 14 of the Guidelines contain offenses
that have been specifically identified by the Texas Legislature in
the Occupations Code §301.4535 as revocable offenses and/or potential
bars to licensure. Pursuant to the terms of §301.4535, an individual
who has committed one of the crimes enumerated in §301.4535 shall
not be eligible to hold a nursing license until at least five years
have passed from the date the individual successfully completes and
is dismissed from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both felony
and misdemeanor offenses. If an offense can be classified under the
penal code as either a felony or misdemeanor, the Guidelines recognize
this distinction and include a corresponding range of recommended
sanctions for the felony offense and the misdemeanor offense. The
Committee also recommended including the definition of each crime
in the first column of the Guidelines instead of the last column of
the Guidelines. As such, the Guidelines have been amended to include
a general definition, based upon the elements listed in the penal
code, for each offense listed in the Guidelines. A legend has also
been added to the second column of the Guidelines that will link a
user to the penal code definitions and classifications of the terms
"felonies" and "misdemeanors". Hyperlinks have also been added to
the third column of the Guidelines that will link a user to the specific
penal code provisions cited by the Guidelines for each criminal offense.
These changes were recommended by the Committee and adopted by the
Board in order to make the Guidelines more user friendly and easier
to understand and navigate.
The amended Guidelines, which are incorporated by reference into
this rule proposal, are published in the "In Addition" section of
this issue of the
Texas Register.
Section-by-Section Overview. Proposed amended §213.28(m)(5)
provides that the amended Guidelines must be used by the Executive
Director, the State Office of Administrative Hearings (SOAH), and
the Board in evaluating the impact of criminal conduct on nurse licensure
in eligibility and disciplinary matters.
Fiscal Note. Katherine Thomas, Executive Director, has determined
that for each year of the first five years the proposed amendments
are in effect, there will be no additional fiscal implications for
state or local government as a result of implementing the proposal.
Public Benefit/Cost Note. Ms. Thomas has also determined that for
each year of the first five years the proposed amendments are in effect,
there will be public benefits. The anticipated public benefits will
be the adoption of requirements that implement the provisions of the
Occupations Code Chapters 53 and 301 and promote fairness, consistency,
efficiency, and predictability in Board decisions regarding eligibility
and disciplinary matters.
The proposed amendments incorporate the use of the Guidelines in
eligibility and disciplinary matters before the Board. In particular,
the proposed amendments incorporate the use of the Guidelines in evaluating
the impact of criminal conduct on nurse licensure in eligibility and
disciplinary matters. The Guidelines identify specific criminal offenses
that are of concern to the Board, as well as provide notice of the
potential consequences of these criminal offenses to licensees and
the general public. Providing advance notice of the potential consequences
of such conduct promotes fair, consistent, and efficient regulation
and helps ensure consistency among Board decisions in eligibility
and disciplinary matters for similarly situated individuals.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposed amendments incorporate the Guidelines into Board rule.
The Guidelines provide notice to applicants, licensees, and the general
public of the potential consequences of a criminal offense on an individual's
nursing licensure status. The proposed amendments require the Executive
Director, SOAH, and the Board to utilize the Guidelines in evaluating
the impact of criminal conduct on nurse licensure in eligibility and
disciplinary matters. However, the Guidelines do not impose any requirements
or conditions on any applicant, licensee, or Board regulated individual
or entity. Therefore, the Board does not anticipate there to be any
compliance costs associated with the proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses. As required by the Government Code §2006.002(c)
and (f), the Board has determined that the proposed amendments will
not have an adverse economic effect on any individual, Board regulated
entity, or other entity required to comply with the proposal because
there are no probable costs associated with the proposal.
Takings Impact Assessment. The Board has determined that no private
real property interests are affected by this proposal and that this
proposal does not restrict or limit an owner's right to property that
would otherwise exist in the absence of government action and, therefore,
does not constitute a taking or require a takings impact assessment
under the Government Code §2007.043.
Request for Public Comment. To be considered, written comments
on the proposal or any request for a public hearing must be submitted
no later than 5:00 p.m. on June 17, 2013, 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 Occupations Code Chapter
53 and §§301.151, 301.1545, 301.452, 301.4521, 301.453,
301.4531, and 301.4535.
Section 53.021(a) provides that a licensing authority may suspend
or revoke a license, disqualify a person from receiving a license,
or deny to a person the opportunity to take a licensing examination
on the grounds that the person has been convicted of: (i) an offense
that directly relates to the duties and responsibilities of the licensed
occupation; (ii) an offense that does not directly relate to the duties
and responsibilities of the licensed occupation and that was committed
less than five years before the date the person applies for the license;
(iii) an offense listed in Section 3g, Article 42.12, Code of Criminal
Procedure; or (iv) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
Section 53.021(b) states that a license holder's license shall
be revoked on the license holder's imprisonment following a felony
conviction, felony community supervision revocation, revocation of
parole, or revocation of mandatory supervision.
Section 53.021(c) states that, except as provided by §53.021(d)
and (e), notwithstanding any other law, a licensing authority may
not consider a person to have been convicted of an offense for purposes
of §53.021 if, regardless of the statutory authorization: (i)
the person entered a plea of guilty or nolo contendere; (ii) the judge
deferred further proceedings without entering an adjudication of guilt
and placed the person under the supervision of the court or an officer
under the supervision of the court; and (iii) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
Section 53.021(d) provides that a licensing authority may consider
a person to have been convicted of an offense for purposes of §53.021
regardless of whether the proceedings were dismissed and the person
was discharged as described by §53.021(c) if, after consideration
of the factors described by §53.022 and §53.023(a), the
licensing authority determines that: (i) the person may pose a continued
threat to public safety; or (ii) employment of the person in the licensed
occupation would create a situation in which the person has an opportunity
to repeat the prohibited conduct.
Section 53.021(e) states that §53.021(c) does not apply if
the person is an applicant for or the holder of a license that authorizes
the person to provide: (i) law enforcement or public health, education,
or safety services; or (ii) financial services in an industry regulated
by a person listed in §411.081(i)(19), Government Code.
Section 53.022 provides that, in determining whether a criminal
conviction directly relates to an occupation, the licensing authority
shall consider: (i) the nature and seriousness of the crime; (ii)
the relationship of the crime to the purposes for requiring a license
to engage in the occupation; (iii) the extent to which a license might
offer an opportunity to engage in further criminal activity of the
same type as that in which the person previously had been involved;
and (iv) the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
of the licensed occupation.
Section 53.023(a) states that, in determining the fitness to perform
the duties and discharge the responsibilities of the licensed occupation
of a person who has been convicted of a crime, the licensing authority
shall consider, in addition to the factors listed in §53.022:
(i) the extent and nature of the person's past criminal activity;
(ii) the age of the person when the crime was committed; (iii) the
amount of time that has elapsed since the person's last criminal activity;
(iv) the conduct and work activity of the person before and after
the criminal activity; (v) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release; and
(vi) other evidence of the person's fitness, including letters of
recommendation from: (A) prosecutors and law enforcement and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person; (B) the sheriff or chief of police in the community
where the person resides; and (C) any other person in contact with
the convicted person.
Section 53.023(b) states that the applicant has the responsibility,
to the extent possible, to obtain and provide to the licensing authority
the recommendations of the prosecution, law enforcement, and correctional
authorities as required by §53.023(a)(6).
Section 53.023(c) states that in addition to fulfilling the requirements
of §53.023(b), the applicant shall furnish proof in the form
required by the licensing authority that the applicant has: (i) maintained
a record of steady employment; (ii) supported the applicant's dependents;
(iii) maintained a record of good conduct; and (iv) paid all outstanding
court costs, supervision fees, fines, and restitution ordered in any
criminal case in which the applicant has been convicted.
Section 53.025(a) states that each licensing authority shall issue
guidelines relating to the practice of the licensing authority under
Chapter 53. Further, the guidelines must state the reasons a particular
crime is considered to relate to a particular license and any other
criterion that affects the decisions of the licensing authority.
Section 53.025(b) states that a state licensing authority that
issues guidelines under §53.025 shall file the guidelines with
the secretary of state for publication in the
Texas
Register.
Section 53.025(c) states that a local or county licensing authority
that issues guidelines under §53.025 shall post the guidelines
at the courthouse for the county in which the licensing authority
is located or publish the guidelines in a newspaper having countywide
circulation in that county.
Section 53.025(d) provides that amendments to the guidelines, if
any, shall be issued annually.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Section 301.1545(a) provides that the Board shall adopt rules and
guidelines necessary to comply with Chapter 53, except to the extent
the requirements of Subtitle E are stricter than the requirements
of Chapter 53.
Section 301.1545(b) states that, in its rules under §301.1545,
the Board shall list the offenses for which a conviction would constitute
grounds for the Board to take action under §53.021 or for which
placement on deferred adjudication community supervision would constitute
grounds for the Board to take action under Chapter 301.
Section 301.452(a) defines intemperate use to include practicing
nursing or being on duty or on call while under the influence of alcohol
or drugs.
Section 301.452(b) provides that a person is subject to denial
of a license or to disciplinary action under Subchapter J for: (i)
a violation of Chapter 301, a rule or regulation not inconsistent
with Chapter 301, or an order issued under Chapter 301; (ii) fraud
or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (iii) a conviction for,
or placement on deferred adjudication community supervision or deferred
disposition for, a felony or for a misdemeanor involving moral turpitude;
(iv) conduct that results in the revocation of probation imposed because
of conviction for a felony or for a misdemeanor involving moral turpitude;
(v) use of a nursing license, diploma, or permit, or the transcript
of such a document, that has been fraudulently purchased, issued,
counterfeited, or materially altered; (vi) impersonating or acting
as a proxy for another person in the licensing examination required
under §301.253 or §301.255; (vii) directly or indirectly
aiding or abetting an unlicensed person in connection with the unauthorized
practice of nursing; (viii) revocation, suspension, or denial of,
or any other action relating to, the person's license or privilege
to practice nursing in another jurisdiction; (ix) intemperate use
of alcohol or drugs that the Board determines endangers or could endanger
a patient; (x) unprofessional or dishonorable conduct that, in the
Board's opinion, is likely to deceive, defraud, or injure a patient
or the public; (xi) adjudication of mental incompetency; (xii) lack
of fitness to practice because of a mental or physical health condition
that could result in injury to a patient or the public; or (xiii)
failure to care adequately for a patient or to conform to the minimum
standards of acceptable nursing practice in a manner that, in the
Board's opinion, exposes a patient or other person unnecessarily to
risk of harm.
Section 301.452(c) provides that the Board may refuse to admit
a person to a licensing examination for a ground described under §301.452(b).
Section 301.452(d) provides that the Board by rule shall establish
guidelines to ensure that any arrest information, in particular information
on arrests in which criminal action was not proven or charges were
not filed or adjudicated, that is received by the Board under §301.452
is used consistently, fairly, and only to the extent the underlying
conduct relates to the practice of nursing.
Section 301.4521(a) defines the term "applicant" as a petitioner
for a declaratory order of eligibility for a license or an applicant
for an initial license or renewal of a license and the term "evaluation"
as a physical or psychological evaluation conducted to determine a
person's fitness to practice nursing.
Section 301.4521(b) provides that the Board may require a nurse
or applicant to submit to an evaluation only if the Board has probable
cause to believe that the nurse or applicant is unable to practice
nursing with reasonable skill and safety to patients because of: (i)
physical impairment; (ii) mental impairment; or (iii) chemical dependency
or abuse of drugs or alcohol.
Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b)
must be in writing and state: (i) the reasons probable cause exists
to require the evaluation; and (ii) that refusal by the nurse or applicant
to submit to the evaluation will result in an administrative hearing
to be held to make a final determination of whether probable cause
for the evaluation exists.
Section 301.4521(d) states that, if the nurse or applicant refuses
to submit to the evaluation, the Board shall schedule a hearing on
the issue of probable cause to be conducted by SOAH. The nurse or
applicant must be notified of the hearing by personal service or certified
mail. The hearing is limited to the issue of whether the Board had
probable cause to require an evaluation. The nurse or applicant may
present testimony and other evidence at the hearing to show why the
nurse or applicant should not be required to submit to the evaluation.
The Board has the burden of proving that probable cause exists. At
the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the Board's demand for an evaluation. The order
may not be vacated or modified under the Government Code §2001.058.
Section 301.4521(e) states that, if a nurse or applicant refuses
to submit to an evaluation after an order requiring the evaluation
is entered under §301.4521(d), the Board may: (i) refuse to issue
or renew a license; (ii) suspend a license; or (iii) issue an order
limiting the license.
Section 301.4521(f) provides that the Board may request a nurse
or applicant to consent to an evaluation by a practitioner approved
by the Board for a reason other than a reason listed in §301.4521(b).
A request for an evaluation under §301.4521(f) must be in writing
and state: (i) the reasons for the request; (ii) the type of evaluation
requested; (iii) how the Board may use the evaluation; (iv) that the
nurse or applicant may refuse to submit to an evaluation; and (v)
the procedures for submitting an evaluation as evidence in any hearing
regarding the issuance or renewal of the nurse's or applicant's license.
Section 301.4521(g) states that, if a nurse or applicant refuses
to consent to an evaluation under §301.4521(f), the nurse or
applicant may not introduce an evaluation into evidence at a hearing
to determine the nurse's or applicant's right to be issued or retain
a nursing license unless the nurse or applicant: (i) not later than
the 30th day before the date of the hearing, notifies the Board that
an evaluation will be introduced into evidence at the hearing; (ii)
provides the Board the results of that evaluation; (iii) informs the
Board of any other evaluations by any other practitioners; and (iv)
consents to an evaluation by a practitioner that meets Board standards
established under §301.4521(h).
Section 301.4521(h) provides that the Board shall establish by
rule the qualifications for a licensed practitioner to conduct an
evaluation under §301.4521. The Board shall maintain a list of
qualified practitioners. The Board may solicit qualified practitioners
located throughout the state to be on the list.
Section 301.4521(i) states that a nurse or applicant shall pay
the costs of an evaluation conducted under §301.4521.
Section 301.4521(j) provides that the results of an evaluation
under §301.4521 are: (i) confidential and not subject to disclosure
under the Government Code Chapter 552; (ii) not subject to disclosure
by discovery, subpoena, or other means of legal compulsion for release
to anyone, except that the results may be: (A) introduced as evidence
in a proceeding before the Board or a hearing conducted by SOAH under
Chapter 301; or (B) included in the findings of fact and conclusions
of law in a final Board order.
Section 301.4521(k) provides that, if the Board determines there
is insufficient evidence to bring action against a person based on
the results of any evaluation under §301.4521, the evaluation
must be expunged from the Board's records.
Section 301.4521(l) requires the Board to adopt guidelines for
requiring or requesting a nurse or applicant to submit to an evaluation
under §301.4521.
Section 301.4521(m) states that the authority granted to the Board
under §301.4521 is in addition to the Board's authority to make
licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that
a person has committed an act listed in §301.452(b), the Board
shall enter an order imposing one or more of the following: (i) denial
of the person's application for a license, license renewal, or temporary
permit; (ii) issuance of a written warning; (iii) administration of
a public reprimand; (iv) limitation or restriction of the person's
license, including limiting to or excluding from the person's practice
one or more specified activities of nursing or stipulating periodic
Board review; (v) suspension of the person's license for a period
not to exceed five years; (vi) revocation of the person's license;
or (vii) assessment of a fine.
Section 301.453(b) provides that, in addition to or instead of
an action under §301.453(a), the Board, by order, may require
the person to: (i) submit to care, counseling, or treatment by a health
provider designated by the Board as a condition for the issuance or
renewal of a license; (ii) participate in a program of education or
counseling prescribed by the Board; (iii) practice for a specified
period under the direction of a registered nurse or vocational nurse
designated by the Board; or (iv) perform public service the Board
considers appropriate.
Section 301.453(c) provides that the Board may probate any penalty
imposed on a nurse and may accept the voluntary surrender of a license.
The Board may not reinstate a surrendered license unless it determines
that the person is competent to resume practice.
Section 301.453(d) states that if the Board suspends, revokes,
or accepts surrender of a license, the Board may impose conditions
for reinstatement that the person must satisfy before the Board may
issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a
schedule of the disciplinary sanctions that the Board may impose under
Chapter 301. In adopting the schedule of sanctions, the Board shall
ensure that the severity of the sanction imposed is appropriate to
the type of violation or conduct that is the basis for disciplinary
action.
Section 301.4531(b) states, in determining the appropriate disciplinary
action, including the amount of any administrative penalty to assess,
the Board shall consider: (i) whether the person is being disciplined
for multiple violations of either Chapter 301 or a rule or order adopted
under Chapter 301 or has previously been the subject of disciplinary
action by the Board and has previously complied with Board rules and
Chapter 301; (ii) the seriousness of the violation; (iii) the threat
to public safety; and (iv) any mitigating factors.
Section 301.4531(c) provides that, in the case of a person described
by §301.4531(b)(1)(A), the Board shall consider taking a more
severe disciplinary action, including revocation of the person's license,
than the disciplinary action that would be taken for a single violation;
and in the case of a person described by §301.4531(b)(1)(B),
the Board shall consider taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action that would be taken for a person who has not previously been
the subject of disciplinary action by the Board.
Section 301.4535(a) provides that the Board shall suspend a nurse's
license or refuse to issue a license to an applicant on proof that
the nurse or applicant has been initially convicted of: (i) murder
under Section 19.02, Penal Code, capital murder under Section 19.03,
Penal Code, or manslaughter under Section 19.04, Penal Code; (ii)
kidnapping or unlawful restraint under Chapter 20, Penal Code, and
the offense was punished as a felony or state jail felony; (iii) sexual
assault under Section 22.011, Penal Code; (iv) aggravated sexual assault
under Section 22.021, Penal Code; (v) continuous sexual abuse of young
child or children under Section 21.02, Penal Code, or indecency with
a child under Section 21.11, Penal Code; (vi) aggravated assault under
Section 22.02, Penal Code; (vii) intentionally, knowingly, or recklessly
injuring a child, elderly individual, or disabled individual under
Section 22.04, Penal Code; (viii) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(ix) aiding suicide under Section 22.08, Penal Code, and the offense
was punished as a state jail felony; (x) an offense under Section
25.07, Penal Code, punished as a felony; (xi) an offense under Section
25.071, Penal Code, punished as a felony; (xii) an agreement to abduct
a child from custody under Section 25.031, Penal Code; (xiii) the
sale or purchase of a child under Section 25.08, Penal Code; (xiv)
robbery under Section 29.02, Penal Code; (xv) aggravated robbery under
Section 29.03, Penal Code; (xvi) an offense for which a defendant
is required to register as a sex offender under Chapter 62, Code of
Criminal Procedure; or (xvii) an offense under the law of another
state, federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense
listed in this subsection.
Section 301.4535(a-1) states that an applicant or nurse who is
refused an initial license or renewal of a license or whose license
is suspended under §301.4535(a) is not eligible for a probationary,
stipulated, or otherwise encumbered license unless the Board establishes
by rule criteria that would permit the issuance or renewal of the
license.
Section 301.4535(b) states that on final conviction or a plea of
guilty or nolo contendere for an offense listed in §301.4535(a),
the Board, as appropriate, may not issue a license to an applicant,
shall refuse to renew a license, or shall revoke a license.
Section 301.4535(c) states that a person is not eligible for an
initial license or for reinstatement or endorsement of a license to
practice nursing in this state before the fifth anniversary of the
date the person successfully completed and was dismissed from community
supervision or parole for an offense described by §301.4535(a).
Cross Reference to Statute.
The following statutes are affected by this proposal: the Occupations
Code Chapter 53 and §§301.151, 301.1545, 301.452, 301.4521,
301.453, 301.4531, and 301.4535.
§213.28.Licensure of Persons with Criminal Offenses.
(a) - (l)
(No change.)
(m)
The following disciplinary and eligibility sanction
policies and guidelines shall be used by the Executive Director, the
State Office of Administrative Hearings (SOAH),
and
[
(1) - (4)
(No change.)
(5)
Disciplinary Guidelines for Criminal Conduct approved
by the Board and published [
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 3, 2013.
TRD-201301763
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
For further information, please call: (512) 305-6822
22 TAC §213.29
Introduction. The Texas Board of Nursing (Board)
proposes amendments to §213.29, concerning Criteria and Procedure
Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary
Matters. Specifically, the proposed amendments affect the Board's
Disciplinary Guidelines for Criminal Conduct (Guidelines), which are
incorporated by reference in §213.29(j). The amendments are proposed
under the authority of the Occupations Code §§301.151, 301.1545,
301.452, 301.4521, 301.453, 301.4531, and 301.4535; and the Occupations
Code Chapter 53, particularly §53.025(a), which requires licensing
agencies to issue guidelines that state the reasons that a particular
crime is considered to relate to the practice of the licensing agency
and any other criterion that affects the decision of the licensing
agency when considering the effects of the crime on an individual's
licensure status.
Background. The Guidelines were originally approved by the Board
and published in the
Texas Register
on
March 9, 2007 (32 TexReg 1409). The Board received no public comments
on the Guidelines and, on July 2, 2008, adopted the Guidelines by
reference in §213.29(j)(2) (33 TexReg 5007). The Guidelines have
not undergone formal review and amendment since their original publication
date in 2007. As a result, at its April 2012 meeting, the Board issued
a charge to the Eligibility and Disciplinary Advisory Committee (Committee)
to review and make recommendations regarding the Guidelines. In particular,
the Board charged the Committee with considering whether: (i) portions
of the Guidelines were outdated/obsolete; (ii) the Guidelines should
establish a minimally acceptable sanction for each criminal offense;
(iii) the recommended range of sanctions in the Guidelines were appropriate;
and (iv) the type and/or amount of mitigating evidence necessary to
support a more lenient sanction under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013; and March
25, 2013 to review the Guidelines. Following a detailed review and
discussion of the Guidelines, the Committee voted unanimously to recommend
several changes to the Board. The Committee's recommended changes
to the Guidelines, along with minor editorial/typographical changes
identified by Board Staff, were presented to the Board at its April
2013 meeting. The Board voted to adopt the Guidelines, as amended,
and propose amendments to §213.29(j) to incorporate the adopted
changes into rule.
Many of the changes to the Guidelines are editorial and organizational
in nature. However, some of the changes are more substantive. First,
thirty-five new criminal offenses have been added to the Guidelines.
These offenses include various felonies and misdemeanors, as well
as crimes that have been specifically identified by the Texas Legislature
in the Occupations Code §301.4535 as affecting nursing licensure.
The additional crimes include: continuous sexual abuse of young child
or children (§301.4535(a)(5)); offenses for which registration
as a sex offender is required under the Code of Criminal Procedure
Chapter 62 (§301.4535(a)(16)); aggravated perjury (felony); bail
jumping and failure to appear (felony/misdemeanor); bribery (felony);
burglary of vehicles (felony/misdemeanor); credit card/debit card
abuse (felony); criminal nonsupport (felony); driving while intoxicated
with child passenger (felony); evading arrest or detention (felony/misdemeanor);
failure to identify (misdemeanor); fraudulent destruction, removal,
or concealment of writing (felony/misdemeanor); fraudulent use of
possession of identifying information (felony); harboring runaway
child (misdemeanor); hindering apprehension or prosecution (felony/misdemeanor);
hindering secured creditors (felony/misdemeanor); interference with
child custody (felony); intoxication assault (felony); intoxication
manslaughter (felony); misapplication of fiduciary property or property
of financial institution (felony/misdemeanor); obstruction or retaliation
(felony); perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misdemeanor);
public lewdness (misdemeanor); securing execution of document by deception
(felony/misdemeanor); smuggling of persons (felony); tampering with
or fabricating physical evidence (felony/misdemeanor); tampering with
witness (felony); theft of service (felony/misdemeanor); trafficking
of persons (felony); unlawful carrying weapon (felony/misdemeanor);
unlawful possession of firearm (felony/misdemeanor); unlawful restraint
(misdemeanor); and violation of civil rights of person in custody/improper
sexual acts with a person in custody (felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nursing Practice
Act), criminal offenses may affect an individual's ability to obtain
a nursing license (licensure eligibility) and a nurse's licensure
status (licensure discipline). Board Staff routinely review individuals'
criminal history to determine what effect, if any, a particular offense
may have in eligibility and disciplinary cases. The thirty-five new
offenses that were recommended by the Committee and approved by the
Board are offenses that Board Staff have identified over the last
few years during its review of eligibility and disciplinary files.
These offenses have occurred frequently enough over the last few years
to warrant inclusion in the Guidelines. Further, the Board has determined
that these additional offenses are sufficiently related to the practice
of nursing and are serious enough in nature to warrant investigation
and, possibly, denial of licensure and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory rationale has
been included as well. For example, the felony offense of intoxication
manslaughter has been added to the Guidelines. As stated in the Guideline's
preamble, although the Guidelines provide a recommended range of sanctions
for each offense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined upon
a consideration of the aggravating and/or mitigating factors present
in that case. For the offense of felony intoxication manslaughter,
and depending upon the length of time that has transpired since the
judicial order associated with the offense was issued, the recommended
sanction range includes licensure denial or revocation, as well as
options for licensure discipline. The remaining additional offenses
that have been added to the Guidelines also include a corresponding
recommended range of sanctions that will include an analysis of the
mitigating and/or aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous example,
criminal offenses involving alcohol and/or drugs, such as felony intoxication
manslaughter, may indicate that an individual has a chemical dependency
and/or substance abuse issue. Chemical dependency and/or substance
abuse may affect an individual's professional judgment and ability
to practice nursing with reasonable skill and safety. As such, the
Board is concerned about such conduct, and an individual with this
criminal history may be subject to a Board investigation to determine
what effect, if any, the offense will have on the individual's licensure
status. The remaining additional offenses that have been added to
the Guidelines also include an explanation of how the offense relates
to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Occupations
Code §301.4521, the Board is authorized to require certain physical
and/or psychological evaluations of its applicants and licensees.
In the present example regarding the felony offense of intoxication
manslaughter, the Guidelines specify that a chemical dependency evaluation
may be required to assist the Board in determining the effect of the
individual's criminal history on his/her licensure status. Although §301.4521
authorizes the Board to require and/or request physical and psychological
evaluations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable skill
and safety, additional notations have been added throughout the Guidelines
to indicate the types of evaluations that the Board may request/require
in matters involving a particular criminal offense. Although this
additional information does not limit the Board's ability to require/request
additional types of evaluations in a particular case, it is intended
to provide notice to individuals that an evaluation may be required
and/or requested in order to assist the Board in determining whether
the individual is fit to practice nursing safely and the potential
effect the particular criminal offense may have on the individual's
licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended to include
additional information regarding the application of the Guidelines.
The Guidelines are intended to inform applicants, licensees, and the
general public of the potential effect a particular criminal offense
may have on nurse licensure. As such, the Guidelines are based upon
criminal offenses that have already been addressed and/or adjudicated
by the penal system. The Board will not re-litigate the underlying
facts of the criminal matter. Therefore, the amended language makes
clear that the Board will consider the potential effect of a criminal
offense upon an individual's licensure status as that offense has
been previously determined by the penal system.
For certain offense, the Committee also recommended including additional
information in the last column of the Guidelines to better explain
the offense's connection to the practice of nursing. For example,
for the offenses of "arson" and "cruelty to animals," information
has been added to the last column of the Guidelines to emphasize that
individuals who commit these types of criminal offenses have been
linked with underlying psychopathology and/or may be more likely to
engage in violent/harmful behaviors toward humans. This additional
information clarifies why the Board may be concerned about an individual
who has committed one of these offenses. "Aggravated perjury" and
all of the prostitution offenses also include additional language
better explaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanction for
each offense listed in the Guidelines. Although the Committee felt
that the recommended ranges of sanctions were appropriate for the
majority of the offenses, the Committee recommended that offenses
primarily related to the use of drugs and/or alcohol be amended to
include less severe sanctions if the individual demonstrates compliance
with a treatment program and evidence of ongoing sobriety. Therefore,
the Guidelines have been amended to include a broader range of recommended
sanctions for these types of offenses. In particular, the amended
range of sanctions for these types of offenses includes participation
in a peer assistance program, as well as licensure suspension, which
can either be enforced or probated, depending upon whether an individual
is able to demonstrate twelve consecutive months of verifiable sobriety.
These additional options are consistent with the Board's adopted Eligibility
and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or Other Substance Use Disorder, as well as
the Board's rules regarding chemical dependency and substance abuse.
The Guidelines have also been amended to clarify the use of certain
terminology within the Guidelines. In particular, the term "judicial
order" has been amended to include orders of conviction, regardless
of the plea entered, deferred adjudications, regardless of the plea
entered, and deferred dispositions, including, but not limited to,
pre-trial diversion agreements and deferred prosecutions. Further,
the term "probation" has been amended to include community supervision,
probation, parole, and any other requirement that results from, or
is related to, a criminal disposition of any form, including deferred
dispositions, such as pre-trial diversion agreements and deferred
prosecutions. These amendments are intended to clarify the existing
intent of the Guidelines and are consistent with the Board's authority
to investigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act, particularly §301.452(b)(3).
Finally, the Guidelines have been re-organized based upon recommendations
by the Committee. Pages 4 - 14 of the Guidelines contain offenses
that have been specifically identified by the Texas Legislature in
the Occupations Code §301.4535 as revocable offenses and/or potential
bars to licensure. Pursuant to the terms of §301.4535, an individual
who has committed one of the crimes enumerated in §301.4535 shall
not be eligible to hold a nursing license until at least five years
have passed from the date the individual successfully completes and
is dismissed from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both felony
and misdemeanor offenses. If an offense can be classified under the
penal code as either a felony or misdemeanor, the Guidelines recognize
this distinction and include a corresponding range of recommended
sanctions for the felony offense and the misdemeanor offense. The
Committee also recommended including the definition of each crime
in the first column of the Guidelines instead of the last column of
the Guidelines. As such, the Guidelines have been amended to include
a general definition, based upon the elements listed in the penal
code, for each offense listed in the Guidelines. A legend has also
been added to the second column of the Guidelines that will link a
user to the penal code definitions and classifications of the terms
"felonies" and "misdemeanors". Hyperlinks have also been added to
the third column of the Guidelines that will link a user to the specific
penal code provisions cited by the Guidelines for each criminal offense.
These changes were recommended by the Committee and adopted by the
Board in order to make the Guidelines more user friendly and easier
to understand and navigate.
The amended Guidelines, which are incorporated by reference into
this rule proposal, are published in the "In Addition" section of
this issue of the
Texas Register.
Section-by-Section Overview. Proposed amended §213.29(j)(2)
provides that the amended Guidelines must be used by the Executive
Director, the State Office of Administrative Hearings (SOAH), and
the Board in evaluating the appropriate licensure determination or
sanction in eligibility and disciplinary matters.
Fiscal Note. Katherine Thomas, Executive Director, has determined
that for each year of the first five years the proposed amendments
are in effect, there will be no additional fiscal implications for
state or local government as a result of implementing the proposal.
Public Benefit/Cost Note. Ms. Thomas has also determined that for
each year of the first five years the proposed amendments are in effect,
there will be public benefits. The anticipated public benefits will
be the adoption of requirements that implement the provisions of the
Occupations Code Chapters 53 and 301 and promote fairness, consistency,
efficiency, and predictability in Board decisions regarding eligibility
and disciplinary matters.
The proposed amendments incorporate the use of the Guidelines in
eligibility and disciplinary matters before the Board. In particular,
the proposed amendments incorporate the use of the Guidelines in evaluating
the appropriate licensure determination or sanction in eligibility
and disciplinary matters. The Guidelines identify specific criminal
offenses that are of concern to the Board, as well as provide notice
of the potential consequences of these criminal offenses to licensees
and the general public. Providing advance notice of the potential
consequences of such conduct promotes fair, consistent, and efficient
regulation and helps ensure consistency among Board decisions in eligibility
and disciplinary matters for similarly situated individuals.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposed amendments incorporate the Guidelines into Board rule.
The Guidelines provide notice to applicants, licensees, and the general
public of the potential consequences of a criminal offense on an individual's
nursing licensure status. The proposed amendments require the Executive
Director, SOAH, and the Board to utilize the Guidelines in evaluating
the appropriate licensure determination or sanction in eligibility
and disciplinary matters. However, the Guidelines do not impose any
requirements or conditions on any applicant, licensee, or Board regulated
individual or entity. Therefore, the Board does not anticipate there
to be any compliance costs associated with the proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses. As required by the Government Code §2006.002(c)
and (f), the Board has determined that the proposed amendments will
not have an adverse economic effect on any individual, Board regulated
entity, or other entity required to comply with the proposal because
there are no probable costs associated with the proposal.
Takings Impact Assessment. The Board has determined that no private
real property interests are affected by this proposal and that this
proposal does not restrict or limit an owner's right to property that
would otherwise exist in the absence of government action and, therefore,
does not constitute a taking or require a takings impact assessment
under the Government Code §2007.043.
Request for Public Comment. To be considered, written comments
on the proposal or any request for a public hearing must be submitted
no later than 5:00 p.m. on June 17, 2013, 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 Occupations Code Chapter
53 and §§301.151, 301.1545, 301.452, 301.4521, 301.453,
301.4531, and 301.4535.
Section 53.021(a) provides that a licensing authority may suspend
or revoke a license, disqualify a person from receiving a license,
or deny to a person the opportunity to take a licensing examination
on the grounds that the person has been convicted of: (i) an offense
that directly relates to the duties and responsibilities of the licensed
occupation; (ii) an offense that does not directly relate to the duties
and responsibilities of the licensed occupation and that was committed
less than five years before the date the person applies for the license;
(iii) an offense listed in Section 3g, Article 42.12, Code of Criminal
Procedure; or (iv) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
Section 53.021(b) states that a license holder's license shall
be revoked on the license holder's imprisonment following a felony
conviction, felony community supervision revocation, revocation of
parole, or revocation of mandatory supervision.
Section 53.021(c) states that, except as provided by §53.021(d)
and (e), notwithstanding any other law, a licensing authority may
not consider a person to have been convicted of an offense for purposes
of §53.021 if, regardless of the statutory authorization: (i)
the person entered a plea of guilty or nolo contendere; (ii) the judge
deferred further proceedings without entering an adjudication of guilt
and placed the person under the supervision of the court or an officer
under the supervision of the court; and (iii) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
Section 53.021(d) provides that a licensing authority may consider
a person to have been convicted of an offense for purposes of §53.021
regardless of whether the proceedings were dismissed and the person
was discharged as described by §53.021(c) if, after consideration
of the factors described by §53.022 and §53.023(a), the
licensing authority determines that: (i) the person may pose a continued
threat to public safety; or (ii) employment of the person in the licensed
occupation would create a situation in which the person has an opportunity
to repeat the prohibited conduct.
Section 53.021(e) states that §53.021(c) does not apply if
the person is an applicant for or the holder of a license that authorizes
the person to provide: (i) law enforcement or public health, education,
or safety services; or (ii) financial services in an industry regulated
by a person listed in §411.081(i)(19), Government Code.
Section 53.022 provides that, in determining whether a criminal
conviction directly relates to an occupation, the licensing authority
shall consider: (i) the nature and seriousness of the crime; (ii)
the relationship of the crime to the purposes for requiring a license
to engage in the occupation; (iii) the extent to which a license might
offer an opportunity to engage in further criminal activity of the
same type as that in which the person previously had been involved;
and (iv) the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
of the licensed occupation.
Section 53.023(a) states that, in determining the fitness to perform
the duties and discharge the responsibilities of the licensed occupation
of a person who has been convicted of a crime, the licensing authority
shall consider, in addition to the factors listed in §53.022:
(i) the extent and nature of the person's past criminal activity;
(ii) the age of the person when the crime was committed; (iii) the
amount of time that has elapsed since the person's last criminal activity;
(iv) the conduct and work activity of the person before and after
the criminal activity; (v) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release; and
(vi) other evidence of the person's fitness, including letters of
recommendation from: (A) prosecutors and law enforcement and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person; (B) the sheriff or chief of police in the community
where the person resides; and (C) any other person in contact with
the convicted person.
Section 53.023(b) states that the applicant has the responsibility,
to the extent possible, to obtain and provide to the licensing authority
the recommendations of the prosecution, law enforcement, and correctional
authorities as required by §53.023(a)(6).
Section 53.023(c) states that in addition to fulfilling the requirements
of §53.023(b), the applicant shall furnish proof in the form
required by the licensing authority that the applicant has: (i) maintained
a record of steady employment; (ii) supported the applicant's dependents;
(iii) maintained a record of good conduct; and (iv) paid all outstanding
court costs, supervision fees, fines, and restitution ordered in any
criminal case in which the applicant has been convicted.
Section 53.025(a) states that each licensing authority shall issue
guidelines relating to the practice of the licensing authority under
Chapter 53. Further, the guidelines must state the reasons a particular
crime is considered to relate to a particular license and any other
criterion that affects the decisions of the licensing authority.
Section 53.025(b) states that a state licensing authority that
issues guidelines under §53.025 shall file the guidelines with
the secretary of state for publication in the
Texas
Register.
Section 53.025(c) states that a local or county licensing authority
that issues guidelines under §53.025 shall post the guidelines
at the courthouse for the county in which the licensing authority
is located or publish the guidelines in a newspaper having countywide
circulation in that county.
Section 53.025(d) provides that amendments to the guidelines, if
any, shall be issued annually.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Section 301.1545(a) provides that the Board shall adopt rules and
guidelines necessary to comply with Chapter 53, except to the extent
the requirements of Subtitle E are stricter than the requirements
of Chapter 53.
Section 301.1545(b) states that, in its rules under §301.1545,
the Board shall list the offenses for which a conviction would constitute
grounds for the Board to take action under §53.021 or for which
placement on deferred adjudication community supervision would constitute
grounds for the Board to take action under Chapter 301.
Section 301.452(a) defines intemperate use to include practicing
nursing or being on duty or on call while under the influence of alcohol
or drugs.
Section 301.452(b) provides that a person is subject to denial
of a license or to disciplinary action under Subchapter J for: (i)
a violation of Chapter 301, a rule or regulation not inconsistent
with Chapter 301, or an order issued under Chapter 301; (ii) fraud
or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (iii) a conviction for,
or placement on deferred adjudication community supervision or deferred
disposition for, a felony or for a misdemeanor involving moral turpitude;
(iv) conduct that results in the revocation of probation imposed because
of conviction for a felony or for a misdemeanor involving moral turpitude;
(v) use of a nursing license, diploma, or permit, or the transcript
of such a document, that has been fraudulently purchased, issued,
counterfeited, or materially altered; (vi) impersonating or acting
as a proxy for another person in the licensing examination required
under §301.253 or §301.255; (vii) directly or indirectly
aiding or abetting an unlicensed person in connection with the unauthorized
practice of nursing; (viii) revocation, suspension, or denial of,
or any other action relating to, the person's license or privilege
to practice nursing in another jurisdiction; (ix) intemperate use
of alcohol or drugs that the Board determines endangers or could endanger
a patient; (x) unprofessional or dishonorable conduct that, in the
Board's opinion, is likely to deceive, defraud, or injure a patient
or the public; (xi) adjudication of mental incompetency; (xii) lack
of fitness to practice because of a mental or physical health condition
that could result in injury to a patient or the public; or (xiii)
failure to care adequately for a patient or to conform to the minimum
standards of acceptable nursing practice in a manner that, in the
Board's opinion, exposes a patient or other person unnecessarily to
risk of harm.
Section 301.452(c) provides that the Board may refuse to admit
a person to a licensing examination for a ground described under §301.452(b).
Section 301.452(d) provides that the Board by rule shall establish
guidelines to ensure that any arrest information, in particular information
on arrests in which criminal action was not proven or charges were
not filed or adjudicated, that is received by the Board under §301.452
is used consistently, fairly, and only to the extent the underlying
conduct relates to the practice of nursing.
Section 301.4521(a) defines the term "applicant" as a petitioner
for a declaratory order of eligibility for a license or an applicant
for an initial license or renewal of a license and the term "evaluation"
as a physical or psychological evaluation conducted to determine a
person's fitness to practice nursing.
Section 301.4521(b) provides that the Board may require a nurse
or applicant to submit to an evaluation only if the Board has probable
cause to believe that the nurse or applicant is unable to practice
nursing with reasonable skill and safety to patients because of: (i)
physical impairment; (ii) mental impairment; or (iii) chemical dependency
or abuse of drugs or alcohol.
Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b)
must be in writing and state: (i) the reasons probable cause exists
to require the evaluation; and (ii) that refusal by the nurse or applicant
to submit to the evaluation will result in an administrative hearing
to be held to make a final determination of whether probable cause
for the evaluation exists.
Section 301.4521(d) states that, if the nurse or applicant refuses
to submit to the evaluation, the Board shall schedule a hearing on
the issue of probable cause to be conducted by SOAH. The nurse or
applicant must be notified of the hearing by personal service or certified
mail. The hearing is limited to the issue of whether the Board had
probable cause to require an evaluation. The nurse or applicant may
present testimony and other evidence at the hearing to show why the
nurse or applicant should not be required to submit to the evaluation.
The Board has the burden of proving that probable cause exists. At
the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the Board's demand for an evaluation. The order
may not be vacated or modified under the Government Code §2001.058.
Section 301.4521(e) states that, if a nurse or applicant refuses
to submit to an evaluation after an order requiring the evaluation
is entered under §301.4521(d), the Board may: (i) refuse to issue
or renew a license; (ii) suspend a license; or (iii) issue an order
limiting the license.
Section 301.4521(f) provides that the Board may request a nurse
or applicant to consent to an evaluation by a practitioner approved
by the Board for a reason other than a reason listed in §301.4521(b).
A request for an evaluation under §301.4521(f) must be in writing
and state: (i) the reasons for the request; (ii) the type of evaluation
requested; (iii) how the Board may use the evaluation; (iv) that the
nurse or applicant may refuse to submit to an evaluation; and (v)
the procedures for submitting an evaluation as evidence in any hearing
regarding the issuance or renewal of the nurse's or applicant's license.
Section 301.4521(g) states that, if a nurse or applicant refuses
to consent to an evaluation under §301.4521(f), the nurse or
applicant may not introduce an evaluation into evidence at a hearing
to determine the nurse's or applicant's right to be issued or retain
a nursing license unless the nurse or applicant: (i) not later than
the 30th day before the date of the hearing, notifies the Board that
an evaluation will be introduced into evidence at the hearing; (ii)
provides the Board the results of that evaluation; (iii) informs the
Board of any other evaluations by any other practitioners; and (iv)
consents to an evaluation by a practitioner that meets Board standards
established under §301.4521(h).
Section 301.4521(h) provides that the Board shall establish by
rule the qualifications for a licensed practitioner to conduct an
evaluation under §301.4521. The Board shall maintain a list of
qualified practitioners. The Board may solicit qualified practitioners
located throughout the state to be on the list.
Section 301.4521(i) states that a nurse or applicant shall pay
the costs of an evaluation conducted under §301.4521.
Section 301.4521(j) provides that the results of an evaluation
under §301.4521 are: (i) confidential and not subject to disclosure
under the Government Code Chapter 552; (ii) not subject to disclosure
by discovery, subpoena, or other means of legal compulsion for release
to anyone, except that the results may be: (A) introduced as evidence
in a proceeding before the Board or a hearing conducted by SOAH under
Chapter 301; or (B) included in the findings of fact and conclusions
of law in a final Board order.
Section 301.4521(k) provides that, if the Board determines there
is insufficient evidence to bring action against a person based on
the results of any evaluation under §301.4521, the evaluation
must be expunged from the Board's records.
Section 301.4521(l) requires the Board to adopt guidelines for
requiring or requesting a nurse or applicant to submit to an evaluation
under §301.4521.
Section 301.4521(m) states that the authority granted to the Board
under §301.4521 is in addition to the Board's authority to make
licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that
a person has committed an act listed in §301.452(b), the Board
shall enter an order imposing one or more of the following: (i) denial
of the person's application for a license, license renewal, or temporary
permit; (ii) issuance of a written warning; (iii) administration of
a public reprimand; (iv) limitation or restriction of the person's
license, including limiting to or excluding from the person's practice
one or more specified activities of nursing or stipulating periodic
Board review; (v) suspension of the person's license for a period
not to exceed five years; (vi) revocation of the person's license;
or (vii) assessment of a fine.
Section 301.453(b) provides that, in addition to or instead of
an action under §301.453(a), the Board, by order, may require
the person to: (i) submit to care, counseling, or treatment by a health
provider designated by the Board as a condition for the issuance or
renewal of a license; (ii) participate in a program of education or
counseling prescribed by the Board; (iii) practice for a specified
period under the direction of a registered nurse or vocational nurse
designated by the Board; or (iv) perform public service the Board
considers appropriate.
Section 301.453(c) provides that the Board may probate any penalty
imposed on a nurse and may accept the voluntary surrender of a license.
The Board may not reinstate a surrendered license unless it determines
that the person is competent to resume practice.
Section 301.453(d) states that if the Board suspends, revokes,
or accepts surrender of a license, the Board may impose conditions
for reinstatement that the person must satisfy before the Board may
issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a
schedule of the disciplinary sanctions that the Board may impose under
Chapter 301. In adopting the schedule of sanctions, the Board shall
ensure that the severity of the sanction imposed is appropriate to
the type of violation or conduct that is the basis for disciplinary
action.
Section 301.4531(b) states, in determining the appropriate disciplinary
action, including the amount of any administrative penalty to assess,
the Board shall consider: (i) whether the person is being disciplined
for multiple violations of either Chapter 301 or a rule or order adopted
under Chapter 301 or has previously been the subject of disciplinary
action by the Board and has previously complied with Board rules and
Chapter 301; (ii) the seriousness of the violation; (iii) the threat
to public safety; and (iv) any mitigating factors.
Section 301.4531(c) provides that, in the case of a person described
by §301.4531(b)(1)(A), the Board shall consider taking a more
severe disciplinary action, including revocation of the person's license,
than the disciplinary action that would be taken for a single violation;
and in the case of a person described by §301.4531(b)(1)(B),
the Board shall consider taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action that would be taken for a person who has not previously been
the subject of disciplinary action by the Board.
Section 301.4535(a) provides that the Board shall suspend a nurse's
license or refuse to issue a license to an applicant on proof that
the nurse or applicant has been initially convicted of: (i) murder
under Section 19.02, Penal Code, capital murder under Section 19.03,
Penal Code, or manslaughter under Section 19.04, Penal Code; (ii)
kidnapping or unlawful restraint under Chapter 20, Penal Code, and
the offense was punished as a felony or state jail felony; (iii) sexual
assault under Section 22.011, Penal Code; (iv) aggravated sexual assault
under Section 22.021, Penal Code; (v) continuous sexual abuse of young
child or children under Section 21.02, Penal Code, or indecency with
a child under Section 21.11, Penal Code; (vi) aggravated assault under
Section 22.02, Penal Code; (vii) intentionally, knowingly, or recklessly
injuring a child, elderly individual, or disabled individual under
Section 22.04, Penal Code; (viii) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(ix) aiding suicide under Section 22.08, Penal Code, and the offense
was punished as a state jail felony; (x) an offense under Section
25.07, Penal Code, punished as a felony; (xi) an offense under Section
25.071, Penal Code, punished as a felony; (xii) an agreement to abduct
a child from custody under Section 25.031, Penal Code; (xiii) the
sale or purchase of a child under Section 25.08, Penal Code; (xiv)
robbery under Section 29.02, Penal Code; (xv) aggravated robbery under
Section 29.03, Penal Code; (xvi) an offense for which a defendant
is required to register as a sex offender under Chapter 62, Code of
Criminal Procedure; or (xvii) an offense under the law of another
state, federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense
listed in this subsection.
Section 301.4535(a-1) states that an applicant or nurse who is
refused an initial license or renewal of a license or whose license
is suspended under §301.4535(a) is not eligible for a probationary,
stipulated, or otherwise encumbered license unless the Board establishes
by rule criteria that would permit the issuance or renewal of the
license.
Section 301.4535(b) states that on final conviction or a plea of
guilty or nolo contendere for an offense listed in §301.4535(a),
the Board, as appropriate, may not issue a license to an applicant,
shall refuse to renew a license, or shall revoke a license.
Section 301.4535(c) states that a person is not eligible for an
initial license or for reinstatement or endorsement of a license to
practice nursing in this state before the fifth anniversary of the
date the person successfully completed and was dismissed from community
supervision or parole for an offense described by §301.4535(a).
Cross Reference to Statute.
The following statutes are affected by this proposal: the Occupations
Code Chapter 53 and §§301.151, 301.1545, 301.452, 301.4521,
301.453, 301.4531, and 301.4535.
§213.29.Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters.
(a) - (i)
(No change.)
(j)
The following disciplinary and eligibility sanction
policies and guidelines shall be used by the Executive Director, the
State Office of Administrative Hearings (SOAH),
and
[
(1)
(No change.)
(2)
Disciplinary Guidelines for Criminal Conduct approved
by the Board and published [
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 3, 2013.
TRD-201301764
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
For further information, please call: (512) 305-6822
22 TAC §213.30
Introduction. The Texas Board of Nursing (Board)
proposes amendments to §213.30, concerning Declaratory Order
of Eligibility for Licensure. Specifically, the proposed amendments
affect the Board's Disciplinary Guidelines for Criminal Conduct (Guidelines),
which are incorporated by reference in §213.30(j). The amendments
are proposed under the authority of the Occupations Code §§301.151,
301.1545, 301.452, 301.4521, 301.453, 301.4531, and 301.4535; and
the Occupations Code Chapter 53, particularly §53.025(a), which
requires licensing agencies to issue guidelines that state the reasons
that a particular crime is considered to relate to the practice of
the licensing agency and any other criterion that affects the decision
of the licensing agency when considering the effects of the crime
on an individual's licensure status.
Background. The Guidelines were originally approved by the Board
and published in the
Texas Register
on
March 9, 2007 (32 TexReg 1409). The Board received no public comments
on the Guidelines and, on July 2, 2008, adopted the Guidelines by
reference in §213.30(j)(5) (33 TexReg 5007). The Guidelines have
not undergone formal review and amendment since their original publication
date in 2007. As a result, at its April 2012 meeting, the Board issued
a charge to the Eligibility and Disciplinary Advisory Committee (Committee)
to review and make recommendations regarding the Guidelines. In particular,
the Board charged the Committee with considering whether: (i) portions
of the Guidelines were outdated/obsolete; (ii) the Guidelines should
establish a minimally acceptable sanction for each criminal offense;
(iii) the recommended range of sanctions in the Guidelines were appropriate;
and (iv) the type and/or amount of mitigating evidence necessary to
support a more lenient sanction under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013; and March
25, 2013 to review the Guidelines. Following a detailed review and
discussion of the Guidelines, the Committee voted unanimously to recommend
several changes to the Board. The Committee's recommended changes
to the Guidelines, along with minor editorial/typographical changes
identified by Board Staff, were presented to the Board at its April
2013 meeting. The Board voted to adopt the Guidelines, as amended,
and propose amendments to §213.30(j) to incorporate the adopted
changes into rule.
Many of the changes to the Guidelines are editorial and organizational
in nature. However, some of the changes are more substantive. First,
thirty-five new criminal offenses have been added to the Guidelines.
These offenses include various felonies and misdemeanors, as well
as crimes that have been specifically identified by the Texas Legislature
in the Occupations Code §301.4535 as affecting nursing licensure.
The additional crimes include: continuous sexual abuse of young child
or children (§301.4535(a)(5)); offenses for which registration
as a sex offender is required under the Code of Criminal Procedure
Chapter 62 (§301.4535(a)(16)); aggravated perjury (felony); bail
jumping and failure to appear (felony/misdemeanor); bribery (felony);
burglary of vehicles (felony/misdemeanor); credit card/debit card
abuse (felony); criminal nonsupport (felony); driving while intoxicated
with child passenger (felony); evading arrest or detention (felony/misdemeanor);
failure to identify (misdemeanor); fraudulent destruction, removal,
or concealment of writing (felony/misdemeanor); fraudulent use of
possession of identifying information (felony); harboring runaway
child (misdemeanor); hindering apprehension or prosecution (felony/misdemeanor);
hindering secured creditors (felony/misdemeanor); interference with
child custody (felony); intoxication assault (felony); intoxication
manslaughter (felony); misapplication of fiduciary property or property
of financial institution (felony/misdemeanor); obstruction or retaliation
(felony); perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misdemeanor);
public lewdness (misdemeanor); securing execution of document by deception
(felony/misdemeanor); smuggling of persons (felony); tampering with
or fabricating physical evidence (felony/misdemeanor); tampering with
witness (felony); theft of service (felony/misdemeanor); trafficking
of persons (felony); unlawful carrying weapon (felony/misdemeanor);
unlawful possession of firearm (felony/misdemeanor); unlawful restraint
(misdemeanor); and violation of civil rights of person in custody/improper
sexual acts with a person in custody (felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nursing Practice
Act), criminal offenses may affect an individual's ability to obtain
a nursing license (licensure eligibility) and a nurse's licensure
status (licensure discipline). Board Staff routinely review individuals'
criminal history to determine what effect, if any, a particular offense
may have in eligibility and disciplinary cases. The thirty-five new
offenses that were recommended by the Committee and approved by the
Board are offenses that Board Staff have identified over the last
few years during its review of eligibility and disciplinary files.
These offenses have occurred frequently enough over the last few years
to warrant inclusion in the Guidelines. Further, the Board has determined
that these additional offenses are sufficiently related to the practice
of nursing and are serious enough in nature to warrant investigation
and, possibly, denial of licensure and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory rationale has
been included as well. For example, the felony offense of intoxication
manslaughter has been added to the Guidelines. As stated in the Guideline's
preamble, although the Guidelines provide a recommended range of sanctions
for each offense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined upon
a consideration of the aggravating and/or mitigating factors present
in that case. For the offense of felony intoxication manslaughter,
and depending upon the length of time that has transpired since the
judicial order associated with the offense was issued, the recommended
sanction range includes licensure denial or revocation, as well as
options for licensure discipline. The remaining additional offenses
that have been added to the Guidelines also include a corresponding
recommended range of sanctions that will include an analysis of the
mitigating and/or aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous example,
criminal offenses involving alcohol and/or drugs, such as felony intoxication
manslaughter, may indicate that an individual has a chemical dependency
and/or substance abuse issue. Chemical dependency and/or substance
abuse may affect an individual's professional judgment and ability
to practice nursing with reasonable skill and safety. As such, the
Board is concerned about such conduct, and an individual with this
criminal history may be subject to a Board investigation to determine
what effect, if any, the offense will have on the individual's licensure
status. The remaining additional offenses that have been added to
the Guidelines also include an explanation of how the offense relates
to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Occupations
Code §301.4521, the Board is authorized to require certain physical
and/or psychological evaluations of its applicants and licensees.
In the present example regarding the felony offense of intoxication
manslaughter, the Guidelines specify that a chemical dependency evaluation
may be required to assist the Board in determining the effect of the
individual's criminal history on his/her licensure status. Although §301.4521
authorizes the Board to require and/or request physical and psychological
evaluations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable skill
and safety, additional notations have been added throughout the Guidelines
to indicate the types of evaluations that the Board may request/require
in matters involving a particular criminal offense. Although this
additional information does not limit the Board's ability to require/request
additional types of evaluations in a particular case, it is intended
to provide notice to individuals that an evaluation may be required
and/or requested in order to assist the Board in determining whether
the individual is fit to practice nursing safely and the potential
effect the particular criminal offense may have on the individual's
licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended to include
additional information regarding the application of the Guidelines.
The Guidelines are intended to inform applicants, licensees, and the
general public of the potential effect a particular criminal offense
may have on nurse licensure. As such, the Guidelines are based upon
criminal offenses that have already been addressed and/or adjudicated
by the penal system. The Board will not re-litigate the underlying
facts of the criminal matter. Therefore, the amended language makes
clear that the Board will consider the potential effect of a criminal
offense upon an individual's licensure status as that offense has
been previously determined by the penal system.
For certain offense, the Committee also recommended including additional
information in the last column of the Guidelines to better explain
the offense's connection to the practice of nursing. For example,
for the offenses of "arson" and "cruelty to animals," information
has been added to the last column of the Guidelines to emphasize that
individuals who commit these types of criminal offenses have been
linked with underlying psychopathology and/or may be more likely to
engage in violent/harmful behaviors toward humans. This additional
information clarifies why the Board may be concerned about an individual
who has committed one of these offenses. "Aggravated perjury" and
all of the prostitution offenses also include additional language
better explaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanction for
each offense listed in the Guidelines. Although the Committee felt
that the recommended ranges of sanctions were appropriate for the
majority of the offenses, the Committee recommended that offenses
primarily related to the use of drugs and/or alcohol be amended to
include less severe sanctions if the individual demonstrates compliance
with a treatment program and evidence of ongoing sobriety. Therefore,
the Guidelines have been amended to include a broader range of recommended
sanctions for these types of offenses. In particular, the amended
range of sanctions for these types of offenses includes participation
in a peer assistance program, as well as licensure suspension, which
can either be enforced or probated, depending upon whether an individual
is able to demonstrate twelve consecutive months of verifiable sobriety.
These additional options are consistent with the Board's adopted Eligibility
and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or Other Substance Use Disorder, as well as
the Board's rules regarding chemical dependency and substance abuse.
The Guidelines have also been amended to clarify the use of certain
terminology within the Guidelines. In particular, the term "judicial
order" has been amended to include orders of conviction, regardless
of the plea entered, deferred adjudications, regardless of the plea
entered, and deferred dispositions, including, but not limited to,
pre-trial diversion agreements and deferred prosecutions. Further,
the term "probation" has been amended to include community supervision,
probation, parole, and any other requirement that results from, or
is related to, a criminal disposition of any form, including deferred
dispositions, such as pre-trial diversion agreements and deferred
prosecutions. These amendments are intended to clarify the existing
intent of the Guidelines and are consistent with the Board's authority
to investigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act, particularly §301.452(b)(3).
Finally, the Guidelines have been re-organized based upon recommendations
by the Committee. Pages 4 - 14 of the Guidelines contain offenses
that have been specifically identified by the Texas Legislature in
the Occupations Code §301.4535 as revocable offenses and/or potential
bars to licensure. Pursuant to the terms of §301.4535, an individual
who has committed one of the crimes enumerated in §301.4535 shall
not be eligible to hold a nursing license until at least five years
have passed from the date the individual successfully completes and
is dismissed from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both felony
and misdemeanor offenses. If an offense can be classified under the
penal code as either a felony or misdemeanor, the Guidelines recognize
this distinction and include a corresponding range of recommended
sanctions for the felony offense and the misdemeanor offense. The
Committee also recommended including the definition of each crime
in the first column of the Guidelines instead of the last column of
the Guidelines. As such, the Guidelines have been amended to include
a general definition, based upon the elements listed in the penal
code, for each offense listed in the Guidelines. A legend has also
been added to the second column of the Guidelines that will link a
user to the penal code definitions and classifications of the terms
"felonies" and "misdemeanors". Hyperlinks have also been added to
the third column of the Guidelines that will link a user to the specific
penal code provisions cited by the Guidelines for each criminal offense.
These changes were recommended by the Committee and adopted by the
Board in order to make the Guidelines more user friendly and easier
to understand and navigate.
The amended Guidelines, which are incorporated by reference into
this rule proposal, are published in the "In Addition" section of
this issue of the
Texas Register.
Section-by-Section Overview. Proposed amended §213.30(j)(5)
provides that the amended Guidelines must be used by the Executive
Director and State Office of Administrative Hearings (SOAH) when recommending
a declaratory order of eligibility and by the Board in determining
the appropriate declaratory order in eligibility matters.
Fiscal Note. Katherine Thomas, Executive Director, has determined
that for each year of the first five years the proposed amendments
are in effect, there will be no additional fiscal implications for
state or local government as a result of implementing the proposal.
Public Benefit/Cost Note. Ms. Thomas has also determined that for
each year of the first five years the proposed amendments are in effect,
there will be public benefits. The anticipated public benefits will
be the adoption of requirements that implement the provisions of the
Occupations Code Chapters 53 and 301 and promote fairness, consistency,
efficiency, and predictability in Board decisions regarding eligibility
and disciplinary matters.
The proposed amendments incorporate the use of the Guidelines in
eligibility and disciplinary matters before the Board. In particular,
the proposed amendments incorporate the use of the Guidelines in determining
the appropriate declaratory order in eligibility matters. The Guidelines
identify specific criminal offenses that are of concern to the Board,
as well as provide notice of the potential consequences of these criminal
offenses to licensees and the general public. Providing advance notice
of the potential consequences of such conduct promotes fair, consistent,
and efficient regulation and helps ensure consistency among Board
decisions in eligibility and disciplinary matters for similarly situated
individuals.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposed amendments incorporate the Guidelines into Board rule.
The Guidelines provide notice to applicants, licensees, and the general
public of the potential consequences of a criminal offense on an individual's
nursing licensure status. The proposed amendments require the Executive
Director, SOAH, and the Board to consider the Guidelines when recommending
a declaratory order of eligibility and in determining the appropriate
declaratory order in eligibility matters. However, the Guidelines
do not impose any requirements or conditions on any applicant, licensee,
or Board regulated individual or entity. Therefore, the Board does
not anticipate there to be any compliance costs associated with the
proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses. As required by the Government Code §2006.002(c)
and (f), the Board has determined that the proposed amendments will
not have an adverse economic effect on any individual, Board regulated
entity, or other entity required to comply with the proposal because
there are no probable costs associated with the proposal.
Takings Impact Assessment. The Board has determined that no private
real property interests are affected by this proposal and that this
proposal does not restrict or limit an owner's right to property that
would otherwise exist in the absence of government action and, therefore,
does not constitute a taking or require a takings impact assessment
under the Government Code §2007.043.
Request for Public Comment. To be considered, written comments
on the proposal or any request for a public hearing must be submitted
no later than 5:00 p.m. on June 17, 2013, 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 Occupations Code Chapter
53 and §§301.151, 301.1545, 301.452, 301.4521, 301.453,
301.4531, and 301.4535.
Section 53.021(a) provides that a licensing authority may suspend
or revoke a license, disqualify a person from receiving a license,
or deny to a person the opportunity to take a licensing examination
on the grounds that the person has been convicted of: (i) an offense
that directly relates to the duties and responsibilities of the licensed
occupation; (ii) an offense that does not directly relate to the duties
and responsibilities of the licensed occupation and that was committed
less than five years before the date the person applies for the license;
(iii) an offense listed in Section 3g, Article 42.12, Code of Criminal
Procedure; or (iv) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
Section 53.021(b) states that a license holder's license shall
be revoked on the license holder's imprisonment following a felony
conviction, felony community supervision revocation, revocation of
parole, or revocation of mandatory supervision.
Section 53.021(c) states that, except as provided by §53.021(d)
and (e), notwithstanding any other law, a licensing authority may
not consider a person to have been convicted of an offense for purposes
of §53.021 if, regardless of the statutory authorization: (i)
the person entered a plea of guilty or nolo contendere; (ii) the judge
deferred further proceedings without entering an adjudication of guilt
and placed the person under the supervision of the court or an officer
under the supervision of the court; and (iii) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
Section 53.021(d) provides that a licensing authority may consider
a person to have been convicted of an offense for purposes of §53.021
regardless of whether the proceedings were dismissed and the person
was discharged as described by §53.021(c) if, after consideration
of the factors described by §53.022 and §53.023(a), the
licensing authority determines that: (i) the person may pose a continued
threat to public safety; or (ii) employment of the person in the licensed
occupation would create a situation in which the person has an opportunity
to repeat the prohibited conduct.
Section 53.021(e) states that §53.021(c) does not apply if
the person is an applicant for or the holder of a license that authorizes
the person to provide: (i) law enforcement or public health, education,
or safety services; or (ii) financial services in an industry regulated
by a person listed in §411.081(i)(19), Government Code.
Section 53.022 provides that, in determining whether a criminal
conviction directly relates to an occupation, the licensing authority
shall consider: (i) the nature and seriousness of the crime; (ii)
the relationship of the crime to the purposes for requiring a license
to engage in the occupation; (iii) the extent to which a license might
offer an opportunity to engage in further criminal activity of the
same type as that in which the person previously had been involved;
and (iv) the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
of the licensed occupation.
Section 53.023(a) states that, in determining the fitness to perform
the duties and discharge the responsibilities of the licensed occupation
of a person who has been convicted of a crime, the licensing authority
shall consider, in addition to the factors listed in §53.022:
(i) the extent and nature of the person's past criminal activity;
(ii) the age of the person when the crime was committed; (iii) the
amount of time that has elapsed since the person's last criminal activity;
(iv) the conduct and work activity of the person before and after
the criminal activity; (v) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release; and
(vi) other evidence of the person's fitness, including letters of
recommendation from: (A) prosecutors and law enforcement and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person; (B) the sheriff or chief of police in the community
where the person resides; and (C) any other person in contact with
the convicted person.
Section 53.023(b) states that the applicant has the responsibility,
to the extent possible, to obtain and provide to the licensing authority
the recommendations of the prosecution, law enforcement, and correctional
authorities as required by §53.023(a)(6).
Section 53.023(c) states that in addition to fulfilling the requirements
of §53.023(b), the applicant shall furnish proof in the form
required by the licensing authority that the applicant has: (i) maintained
a record of steady employment; (ii) supported the applicant's dependents;
(iii) maintained a record of good conduct; and (iv) paid all outstanding
court costs, supervision fees, fines, and restitution ordered in any
criminal case in which the applicant has been convicted.
Section 53.025(a) states that each licensing authority shall issue
guidelines relating to the practice of the licensing authority under
Chapter 53. Further, the guidelines must state the reasons a particular
crime is considered to relate to a particular license and any other
criterion that affects the decisions of the licensing authority.
Section 53.025(b) states that a state licensing authority that
issues guidelines under §53.025 shall file the guidelines with
the secretary of state for publication in the
Texas
Register.
Section 53.025(c) states that a local or county licensing authority
that issues guidelines under §53.025 shall post the guidelines
at the courthouse for the county in which the licensing authority
is located or publish the guidelines in a newspaper having countywide
circulation in that county.
Section 53.025(d) provides that amendments to the guidelines, if
any, shall be issued annually.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Section 301.1545(a) provides that the Board shall adopt rules and
guidelines necessary to comply with Chapter 53, except to the extent
the requirements of Subtitle E are stricter than the requirements
of Chapter 53.
Section 301.1545(b) states that, in its rules under §301.1545,
the Board shall list the offenses for which a conviction would constitute
grounds for the Board to take action under §53.021 or for which
placement on deferred adjudication community supervision would constitute
grounds for the Board to take action under Chapter 301.
Section 301.452(a) defines intemperate use to include practicing
nursing or being on duty or on call while under the influence of alcohol
or drugs.
Section 301.452(b) provides that a person is subject to denial
of a license or to disciplinary action under Subchapter J for: (i)
a violation of Chapter 301, a rule or regulation not inconsistent
with Chapter 301, or an order issued under Chapter 301; (ii) fraud
or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (iii) a conviction for,
or placement on deferred adjudication community supervision or deferred
disposition for, a felony or for a misdemeanor involving moral turpitude;
(iv) conduct that results in the revocation of probation imposed because
of conviction for a felony or for a misdemeanor involving moral turpitude;
(v) use of a nursing license, diploma, or permit, or the transcript
of such a document, that has been fraudulently purchased, issued,
counterfeited, or materially altered; (vi) impersonating or acting
as a proxy for another person in the licensing examination required
under §301.253 or §301.255; (vii) directly or indirectly
aiding or abetting an unlicensed person in connection with the unauthorized
practice of nursing; (viii) revocation, suspension, or denial of,
or any other action relating to, the person's license or privilege
to practice nursing in another jurisdiction; (ix) intemperate use
of alcohol or drugs that the Board determines endangers or could endanger
a patient; (x) unprofessional or dishonorable conduct that, in the
Board's opinion, is likely to deceive, defraud, or injure a patient
or the public; (xi) adjudication of mental incompetency; (xii) lack
of fitness to practice because of a mental or physical health condition
that could result in injury to a patient or the public; or (xiii)
failure to care adequately for a patient or to conform to the minimum
standards of acceptable nursing practice in a manner that, in the
Board's opinion, exposes a patient or other person unnecessarily to
risk of harm.
Section 301.452(c) provides that the Board may refuse to admit
a person to a licensing examination for a ground described under §301.452(b).
Section 301.452(d) provides that the Board by rule shall establish
guidelines to ensure that any arrest information, in particular information
on arrests in which criminal action was not proven or charges were
not filed or adjudicated, that is received by the Board under §301.452
is used consistently, fairly, and only to the extent the underlying
conduct relates to the practice of nursing.
Section 301.4521(a) defines the term "applicant" as a petitioner
for a declaratory order of eligibility for a license or an applicant
for an initial license or renewal of a license and the term "evaluation"
as a physical or psychological evaluation conducted to determine a
person's fitness to practice nursing.
Section 301.4521(b) provides that the Board may require a nurse
or applicant to submit to an evaluation only if the Board has probable
cause to believe that the nurse or applicant is unable to practice
nursing with reasonable skill and safety to patients because of: (i)
physical impairment; (ii) mental impairment; or (iii) chemical dependency
or abuse of drugs or alcohol.
Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b)
must be in writing and state: (i) the reasons probable cause exists
to require the evaluation; and (ii) that refusal by the nurse or applicant
to submit to the evaluation will result in an administrative hearing
to be held to make a final determination of whether probable cause
for the evaluation exists.
Section 301.4521(d) states that, if the nurse or applicant refuses
to submit to the evaluation, the Board shall schedule a hearing on
the issue of probable cause to be conducted by SOAH. The nurse or
applicant must be notified of the hearing by personal service or certified
mail. The hearing is limited to the issue of whether the Board had
probable cause to require an evaluation. The nurse or applicant may
present testimony and other evidence at the hearing to show why the
nurse or applicant should not be required to submit to the evaluation.
The Board has the burden of proving that probable cause exists. At
the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the Board's demand for an evaluation. The order
may not be vacated or modified under the Government Code §2001.058.
Section 301.4521(e) states that, if a nurse or applicant refuses
to submit to an evaluation after an order requiring the evaluation
is entered under §301.4521(d), the Board may: (i) refuse to issue
or renew a license; (ii) suspend a license; or (iii) issue an order
limiting the license.
Section 301.4521(f) provides that the Board may request a nurse
or applicant to consent to an evaluation by a practitioner approved
by the Board for a reason other than a reason listed in §301.4521(b).
A request for an evaluation under §301.4521(f) must be in writing
and state: (i) the reasons for the request; (ii) the type of evaluation
requested; (iii) how the Board may use the evaluation; (iv) that the
nurse or applicant may refuse to submit to an evaluation; and (v)
the procedures for submitting an evaluation as evidence in any hearing
regarding the issuance or renewal of the nurse's or applicant's license.
Section 301.4521(g) states that, if a nurse or applicant refuses
to consent to an evaluation under §301.4521(f), the nurse or
applicant may not introduce an evaluation into evidence at a hearing
to determine the nurse's or applicant's right to be issued or retain
a nursing license unless the nurse or applicant: (i) not later than
the 30th day before the date of the hearing, notifies the Board that
an evaluation will be introduced into evidence at the hearing; (ii)
provides the Board the results of that evaluation; (iii) informs the
Board of any other evaluations by any other practitioners; and (iv)
consents to an evaluation by a practitioner that meets Board standards
established under §301.4521(h).
Section 301.4521(h) provides that the Board shall establish by
rule the qualifications for a licensed practitioner to conduct an
evaluation under §301.4521. The Board shall maintain a list of
qualified practitioners. The Board may solicit qualified practitioners
located throughout the state to be on the list.
Section 301.4521(i) states that a nurse or applicant shall pay
the costs of an evaluation conducted under §301.4521.
Section 301.4521(j) provides that the results of an evaluation
under §301.4521 are: (i) confidential and not subject to disclosure
under the Government Code Chapter 552; (ii) not subject to disclosure
by discovery, subpoena, or other means of legal compulsion for release
to anyone, except that the results may be: (A) introduced as evidence
in a proceeding before the Board or a hearing conducted by SOAH under
Chapter 301; or (B) included in the findings of fact and conclusions
of law in a final Board order.
Section 301.4521(k) provides that, if the Board determines there
is insufficient evidence to bring action against a person based on
the results of any evaluation under §301.4521, the evaluation
must be expunged from the Board's records.
Section 301.4521(l) requires the Board to adopt guidelines for
requiring or requesting a nurse or applicant to submit to an evaluation
under §301.4521.
Section 301.4521(m) states that the authority granted to the Board
under §301.4521 is in addition to the Board's authority to make
licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that
a person has committed an act listed in §301.452(b), the Board
shall enter an order imposing one or more of the following: (i) denial
of the person's application for a license, license renewal, or temporary
permit; (ii) issuance of a written warning; (iii) administration of
a public reprimand; (iv) limitation or restriction of the person's
license, including limiting to or excluding from the person's practice
one or more specified activities of nursing or stipulating periodic
Board review; (v) suspension of the person's license for a period
not to exceed five years; (vi) revocation of the person's license;
or (vii) assessment of a fine.
Section 301.453(b) provides that, in addition to or instead of
an action under §301.453(a), the Board, by order, may require
the person to: (i) submit to care, counseling, or treatment by a health
provider designated by the Board as a condition for the issuance or
renewal of a license; (ii) participate in a program of education or
counseling prescribed by the Board; (iii) practice for a specified
period under the direction of a registered nurse or vocational nurse
designated by the Board; or (iv) perform public service the Board
considers appropriate.
Section 301.453(c) provides that the Board may probate any penalty
imposed on a nurse and may accept the voluntary surrender of a license.
The Board may not reinstate a surrendered license unless it determines
that the person is competent to resume practice.
Section 301.453(d) states that if the Board suspends, revokes,
or accepts surrender of a license, the Board may impose conditions
for reinstatement that the person must satisfy before the Board may
issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a
schedule of the disciplinary sanctions that the Board may impose under
Chapter 301. In adopting the schedule of sanctions, the Board shall
ensure that the severity of the sanction imposed is appropriate to
the type of violation or conduct that is the basis for disciplinary
action.
Section 301.4531(b) states, in determining the appropriate disciplinary
action, including the amount of any administrative penalty to assess,
the Board shall consider: (i) whether the person is being disciplined
for multiple violations of either Chapter 301 or a rule or order adopted
under Chapter 301 or has previously been the subject of disciplinary
action by the Board and has previously complied with Board rules and
Chapter 301; (ii) the seriousness of the violation; (iii) the threat
to public safety; and (iv) any mitigating factors.
Section 301.4531(c) provides that, in the case of a person described
by §301.4531(b)(1)(A), the Board shall consider taking a more
severe disciplinary action, including revocation of the person's license,
than the disciplinary action that would be taken for a single violation;
and in the case of a person described by §301.4531(b)(1)(B),
the Board shall consider taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action that would be taken for a person who has not previously been
the subject of disciplinary action by the Board.
Section 301.4535(a) provides that the Board shall suspend a nurse's
license or refuse to issue a license to an applicant on proof that
the nurse or applicant has been initially convicted of: (i) murder
under Section 19.02, Penal Code, capital murder under Section 19.03,
Penal Code, or manslaughter under Section 19.04, Penal Code; (ii)
kidnapping or unlawful restraint under Chapter 20, Penal Code, and
the offense was punished as a felony or state jail felony; (iii) sexual
assault under Section 22.011, Penal Code; (iv) aggravated sexual assault
under Section 22.021, Penal Code; (v) continuous sexual abuse of young
child or children under Section 21.02, Penal Code, or indecency with
a child under Section 21.11, Penal Code; (vi) aggravated assault under
Section 22.02, Penal Code; (vii) intentionally, knowingly, or recklessly
injuring a child, elderly individual, or disabled individual under
Section 22.04, Penal Code; (viii) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(ix) aiding suicide under Section 22.08, Penal Code, and the offense
was punished as a state jail felony; (x) an offense under Section
25.07, Penal Code, punished as a felony; (xi) an offense under Section
25.071, Penal Code, punished as a felony; (xii) an agreement to abduct
a child from custody under Section 25.031, Penal Code; (xiii) the
sale or purchase of a child under Section 25.08, Penal Code; (xiv)
robbery under Section 29.02, Penal Code; (xv) aggravated robbery under
Section 29.03, Penal Code; (xvi) an offense for which a defendant
is required to register as a sex offender under Chapter 62, Code of
Criminal Procedure; or (xvii) an offense under the law of another
state, federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense
listed in this subsection.
Section 301.4535(a-1) states that an applicant or nurse who is
refused an initial license or renewal of a license or whose license
is suspended under §301.4535(a) is not eligible for a probationary,
stipulated, or otherwise encumbered license unless the Board establishes
by rule criteria that would permit the issuance or renewal of the
license.
Section 301.4535(b) states that on final conviction or a plea of
guilty or nolo contendere for an offense listed in §301.4535(a),
the Board, as appropriate, may not issue a license to an applicant,
shall refuse to renew a license, or shall revoke a license.
Section 301.4535(c) states that a person is not eligible for an
initial license or for reinstatement or endorsement of a license to
practice nursing in this state before the fifth anniversary of the
date the person successfully completed and was dismissed from community
supervision or parole for an offense described by §301.4535(a).
Cross Reference to Statute.
The following statutes are affected by this proposal: the Occupations
Code Chapter 53 and §§301.151, 301.1545, 301.452, 301.4521,
301.453, 301.4531, and 301.4535.
§213.30.Declaratory Order of Eligibility for Licensure.
(a) - (i)
(No change.)
(j)
The Disciplinary Matrix and factors set forth in §213.33(b)
and (c) of this chapter and the following disciplinary and eligibility
sanction policies and guidelines shall be used by the Executive Director
and SOAH when recommending a declaratory order of eligibility, and
the Board in determining the appropriate declaratory order in eligibility
matters:
(1) - (4)
(No change.)
(5)
Disciplinary Guidelines for Criminal Conduct approved
by the Board and published [
(k) - (l)
(No change.)
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 3, 2013.
TRD-201301765
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
For further information, please call: (512) 305-6822
22 TAC §213.33
Introduction. The Texas Board of Nursing (Board)
proposes amendments to §213.33, concerning Factors Considered
for Imposition of Penalties/Sanctions. Specifically, the proposed
amendments affect the Board's Disciplinary Guidelines for Criminal
Conduct (Guidelines), which are incorporated by reference in §213.33(b)
and (g). The amendments are proposed under the authority of the Occupations
Code §§301.151, 301.1545, 301.452, 301.4521, 301.453, 301.4531,
and 301.4535; and the Occupations Code Chapter 53, particularly §53.025(a),
which requires licensing agencies to issue guidelines that state the
reasons that a particular crime is considered to relate to the practice
of the licensing agency and any other criterion that affects the decision
of the licensing agency when considering the effects of the crime
on an individual's licensure status.
Background. The Guidelines were originally approved by the Board
and published in the
Texas Register
on
March 9, 2007 (32 TexReg 1409). The Board received no public comments
on the Guidelines and, on July 2, 2008, adopted the Guidelines by
reference in §213.33(g)(5) (33 TexReg 5007). The Guidelines were
later incorporated by reference in §213.33(b) (35 TexReg 1208)
in 2010. The Guidelines have not undergone formal review and amendment
since their original publication date in 2007. As a result, at its
April 2012 meeting, the Board issued a charge to the Eligibility and
Disciplinary Advisory Committee (Committee) to review and make recommendations
regarding the Guidelines. In particular, the Board charged the Committee
with considering whether: (i) portions of the Guidelines were outdated/obsolete;
(ii) the Guidelines should establish a minimally acceptable sanction
for each criminal offense; (iii) the recommended range of sanctions
in the Guidelines were appropriate; and (iv) the type and/or amount
of mitigating evidence necessary to support a more lenient sanction
under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013; and March
25, 2013 to review the Guidelines. Following a detailed review and
discussion of the Guidelines, the Committee voted unanimously to recommend
several changes to the Board. The Committee's recommended changes
to the Guidelines, along with minor editorial/typographical changes
identified by Board Staff, were presented to the Board at its April
2013 meeting. The Board voted to adopt the Guidelines, as amended,
and propose amendments to §213.33(b) and (g) to incorporate the
adopted changes into rule.
Many of the changes to the Guidelines are editorial and organizational
in nature. However, some of the changes are more substantive. First,
thirty-five new criminal offenses have been added to the Guidelines.
These offenses include various felonies and misdemeanors, as well
as crimes that have been specifically identified by the Texas Legislature
in the Occupations Code §301.4535 as affecting nursing licensure.
The additional crimes include: continuous sexual abuse of young child
or children (§301.4535(a)(5)); offenses for which registration
as a sex offender is required under the Code of Criminal Procedure
Chapter 62 (§301.4535(a)(16)); aggravated perjury (felony); bail
jumping and failure to appear (felony/misdemeanor); bribery (felony);
burglary of vehicles (felony/misdemeanor); credit card/debit card
abuse (felony); criminal nonsupport (felony); driving while intoxicated
with child passenger (felony); evading arrest or detention (felony/misdemeanor);
failure to identify (misdemeanor); fraudulent destruction, removal,
or concealment of writing (felony/misdemeanor); fraudulent use of
possession of identifying information (felony); harboring runaway
child (misdemeanor); hindering apprehension or prosecution (felony/misdemeanor);
hindering secured creditors (felony/misdemeanor); interference with
child custody (felony); intoxication assault (felony); intoxication
manslaughter (felony); misapplication of fiduciary property or property
of financial institution (felony/misdemeanor); obstruction or retaliation
(felony); perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misdemeanor);
public lewdness (misdemeanor); securing execution of document by deception
(felony/misdemeanor); smuggling of persons (felony); tampering with
or fabricating physical evidence (felony/misdemeanor); tampering with
witness (felony); theft of service (felony/misdemeanor); trafficking
of persons (felony); unlawful carrying weapon (felony/misdemeanor);
unlawful possession of firearm (felony/misdemeanor); unlawful restraint
(misdemeanor); and violation of civil rights of person in custody/improper
sexual acts with a person in custody (felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nursing Practice
Act), criminal offenses may affect an individual's ability to obtain
a nursing license (licensure eligibility) and a nurse's licensure
status (licensure discipline). Board Staff routinely review individuals'
criminal history to determine what effect, if any, a particular offense
may have in eligibility and disciplinary cases. The thirty-five new
offenses that were recommended by the Committee and approved by the
Board are offenses that Board Staff have identified over the last
few years during its review of eligibility and disciplinary files.
These offenses have occurred frequently enough over the last few years
to warrant inclusion in the Guidelines. Further, the Board has determined
that these additional offenses are sufficiently related to the practice
of nursing and are serious enough in nature to warrant investigation
and, possibly, denial of licensure and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory rationale has
been included as well. For example, the felony offense of intoxication
manslaughter has been added to the Guidelines. As stated in the Guideline's
preamble, although the Guidelines provide a recommended range of sanctions
for each offense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined upon
a consideration of the aggravating and/or mitigating factors present
in that case. For the offense of felony intoxication manslaughter,
and depending upon the length of time that has transpired since the
judicial order associated with the offense was issued, the recommended
sanction range includes licensure denial or revocation, as well as
options for licensure discipline. The remaining additional offenses
that have been added to the Guidelines also include a corresponding
recommended range of sanctions that will include an analysis of the
mitigating and/or aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous example,
criminal offenses involving alcohol and/or drugs, such as felony intoxication
manslaughter, may indicate that an individual has a chemical dependency
and/or substance abuse issue. Chemical dependency and/or substance
abuse may affect an individual's professional judgment and ability
to practice nursing with reasonable skill and safety. As such, the
Board is concerned about such conduct, and an individual with this
criminal history may be subject to a Board investigation to determine
what effect, if any, the offense will have on the individual's licensure
status. The remaining additional offenses that have been added to
the Guidelines also include an explanation of how the offense relates
to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Occupations
Code §301.4521, the Board is authorized to require certain physical
and/or psychological evaluations of its applicants and licensees.
In the present example regarding the felony offense of intoxication
manslaughter, the Guidelines specify that a chemical dependency evaluation
may be required to assist the Board in determining the effect of the
individual's criminal history on his/her licensure status. Although §301.4521
authorizes the Board to require and/or request physical and psychological
evaluations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable skill
and safety, additional notations have been added throughout the Guidelines
to indicate the types of evaluations that the Board may request/require
in matters involving a particular criminal offense. Although this
additional information does not limit the Board's ability to require/request
additional types of evaluations in a particular case, it is intended
to provide notice to individuals that an evaluation may be required
and/or requested in order to assist the Board in determining whether
the individual is fit to practice nursing safely and the potential
effect the particular criminal offense may have on the individual's
licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended to include
additional information regarding the application of the Guidelines.
The Guidelines are intended to inform applicants, licensees, and the
general public of the potential effect a particular criminal offense
may have on nurse licensure. As such, the Guidelines are based upon
criminal offenses that have already been addressed and/or adjudicated
by the penal system. The Board will not re-litigate the underlying
facts of the criminal matter. Therefore, the amended language makes
clear that the Board will consider the potential effect of a criminal
offense upon an individual's licensure status as that offense has
been previously determined by the penal system.
For certain offense, the Committee also recommended including additional
information in the last column of the Guidelines to better explain
the offense's connection to the practice of nursing. For example,
for the offenses of "arson" and "cruelty to animals," information
has been added to the last column of the Guidelines to emphasize that
individuals who commit these types of criminal offenses have been
linked with underlying psychopathology and/or may be more likely to
engage in violent/harmful behaviors toward humans. This additional
information clarifies why the Board may be concerned about an individual
who has committed one of these offenses. "Aggravated perjury" and
all of the prostitution offenses also include additional language
better explaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanction for
each offense listed in the Guidelines. Although the Committee felt
that the recommended ranges of sanctions were appropriate for the
majority of the offenses, the Committee recommended that offenses
primarily related to the use of drugs and/or alcohol be amended to
include less severe sanctions if the individual demonstrates compliance
with a treatment program and evidence of ongoing sobriety. Therefore,
the Guidelines have been amended to include a broader range of recommended
sanctions for these types of offenses. In particular, the amended
range of sanctions for these types of offenses includes participation
in a peer assistance program, as well as licensure suspension, which
can either be enforced or probated, depending upon whether an individual
is able to demonstrate twelve consecutive months of verifiable sobriety.
These additional options are consistent with the Board's adopted Eligibility
and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse,
Substance Dependency, or Other Substance Use Disorder, as well as
the Board's rules regarding chemical dependency and substance abuse.
The Guidelines have also been amended to clarify the use of certain
terminology within the Guidelines. In particular, the term "judicial
order" has been amended to include orders of conviction, regardless
of the plea entered, deferred adjudications, regardless of the plea
entered, and deferred dispositions, including, but not limited to,
pre-trial diversion agreements and deferred prosecutions. Further,
the term "probation" has been amended to include community supervision,
probation, parole, and any other requirement that results from, or
is related to, a criminal disposition of any form, including deferred
dispositions, such as pre-trial diversion agreements and deferred
prosecutions. These amendments are intended to clarify the existing
intent of the Guidelines and are consistent with the Board's authority
to investigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act, particularly §301.452(b)(3).
Finally, the Guidelines have been re-organized based upon recommendations
by the Committee. Pages 4 - 14 of the Guidelines contain offenses
that have been specifically identified by the Texas Legislature in
the Occupations Code §301.4535 as revocable offenses and/or potential
bars to licensure. Pursuant to the terms of §301.4535, an individual
who has committed one of the crimes enumerated in §301.4535 shall
not be eligible to hold a nursing license until at least five years
have passed from the date the individual successfully completes and
is dismissed from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both felony
and misdemeanor offenses. If an offense can be classified under the
penal code as either a felony or misdemeanor, the Guidelines recognize
this distinction and include a corresponding range of recommended
sanctions for the felony offense and the misdemeanor offense. The
Committee also recommended including the definition of each crime
in the first column of the Guidelines instead of the last column of
the Guidelines. As such, the Guidelines have been amended to include
a general definition, based upon the elements listed in the penal
code, for each offense listed in the Guidelines. A legend has also
been added to the second column of the Guidelines that will link a
user to the penal code definitions and classifications of the terms
"felonies" and "misdemeanors". Hyperlinks have also been added to
the third column of the Guidelines that will link a user to the specific
penal code provisions cited by the Guidelines for each criminal offense.
These changes were recommended by the Committee and adopted by the
Board in order to make the Guidelines more user friendly and easier
to understand and navigate.
The amended Guidelines, which are incorporated by reference into
this rule proposal, are published in the "In Addition" section of
this issue of the
Texas Register.
The proposal also includes amendments to §213.33(b) that update
the Board's website address where the Guidelines may be accessed.
The Board's Disciplinary Matrix, which incorporates these changes,
is published in the "Tables & Graphics" section of this issue
of the
Texas Register.
Section-by-Section Overview.
Proposed amended §213.33(b) provides the corrected website
address where the Guidelines may be accessed.
Proposed amended §213.33(g)(5) provides that the amended Guidelines
must be used by the State Office of Administrative Hearings (SOAH)
and the Board in determining the appropriate penalty/sanction in disciplinary
and eligibility matters.
Fiscal Note. Katherine Thomas, Executive Director, has determined
that for each year of the first five years the proposed amendments
are in effect, there will be no additional fiscal implications for
state or local government as a result of implementing the proposal.
Public Benefit/Cost Note. Ms. Thomas has also determined that for
each year of the first five years the proposed amendments are in effect,
there will be public benefits. The anticipated public benefits will
be the adoption of requirements that implement the provisions of the
Occupations Code Chapters 53 and 301 and promote fairness, consistency,
efficiency, and predictability in Board decisions regarding eligibility
and disciplinary matters.
The proposed amendments incorporate the use of the Guidelines in
eligibility and disciplinary matters before the Board. In particular,
the proposed amendments incorporate the use of the Guidelines in determining
the appropriate penalty/sanction in eligibility and disciplinary matters.
The Guidelines identify specific criminal offenses that are of concern
to the Board, as well as provide notice of the potential consequences
of these criminal offenses to licensees and the general public. Providing
advance notice of the potential consequences of such conduct promotes
fair, consistent, and efficient regulation and helps ensure consistency
among Board decisions in eligibility and disciplinary matters for
similarly situated individuals.
Potential Costs for Individuals Required to Comply with the Proposal.
The proposed amendments incorporate the Guidelines into Board rule.
The Guidelines provide notice to applicants, licensees, and the general
public of the potential consequences of a criminal offense on an individual's
nursing licensure status. The proposed amendments require SOAH and
the Board to utilize the Guidelines in determining the appropriate
penalty/sanction in eligibility and disciplinary matters. However,
the Guidelines do not impose any requirements or conditions on any
applicant, licensee, or Board regulated individual or entity. Therefore,
the Board does not anticipate there to be any compliance costs associated
with the proposal.
Economic Impact Statement and Regulatory Flexibility Analysis for
Small and Micro Businesses. As required by the Government Code §2006.002(c)
and (f), the Board has determined that the proposed amendments will
not have an adverse economic effect on any individual, Board regulated
entity, or other entity required to comply with the proposal because
there are no probable costs associated with the proposal.
Takings Impact Assessment. The Board has determined that no private
real property interests are affected by this proposal and that this
proposal does not restrict or limit an owner's right to property that
would otherwise exist in the absence of government action and, therefore,
does not constitute a taking or require a takings impact assessment
under the Government Code §2007.043.
Request for Public Comment. To be considered, written comments
on the proposal or any request for a public hearing must be submitted
no later than 5:00 p.m. on June 17, 2013, 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 Occupations Code Chapter
53 and §§301.151, 301.1545, 301.452, 301.4521, 301.453,
301.4531, and 301.4535.
Section 53.021(a) provides that a licensing authority may suspend
or revoke a license, disqualify a person from receiving a license,
or deny to a person the opportunity to take a licensing examination
on the grounds that the person has been convicted of: (i) an offense
that directly relates to the duties and responsibilities of the licensed
occupation; (ii) an offense that does not directly relate to the duties
and responsibilities of the licensed occupation and that was committed
less than five years before the date the person applies for the license;
(iii) an offense listed in Section 3g, Article 42.12, Code of Criminal
Procedure; or (iv) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
Section 53.021(b) states that a license holder's license shall
be revoked on the license holder's imprisonment following a felony
conviction, felony community supervision revocation, revocation of
parole, or revocation of mandatory supervision.
Section 53.021(c) states that, except as provided by §53.021(d)
and (e), notwithstanding any other law, a licensing authority may
not consider a person to have been convicted of an offense for purposes
of §53.021 if, regardless of the statutory authorization: (i)
the person entered a plea of guilty or nolo contendere; (ii) the judge
deferred further proceedings without entering an adjudication of guilt
and placed the person under the supervision of the court or an officer
under the supervision of the court; and (iii) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
Section 53.021(d) provides that a licensing authority may consider
a person to have been convicted of an offense for purposes of §53.021
regardless of whether the proceedings were dismissed and the person
was discharged as described by §53.021(c) if, after consideration
of the factors described by §53.022 and §53.023(a), the
licensing authority determines that: (i) the person may pose a continued
threat to public safety; or (ii) employment of the person in the licensed
occupation would create a situation in which the person has an opportunity
to repeat the prohibited conduct.
Section 53.021(e) states that §53.021(c) does not apply if
the person is an applicant for or the holder of a license that authorizes
the person to provide: (i) law enforcement or public health, education,
or safety services; or (ii) financial services in an industry regulated
by a person listed in §411.081(i)(19), Government Code.
Section 53.022 provides that, in determining whether a criminal
conviction directly relates to an occupation, the licensing authority
shall consider: (i) the nature and seriousness of the crime; (ii)
the relationship of the crime to the purposes for requiring a license
to engage in the occupation; (iii) the extent to which a license might
offer an opportunity to engage in further criminal activity of the
same type as that in which the person previously had been involved;
and (iv) the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
of the licensed occupation.
Section 53.023(a) states that, in determining the fitness to perform
the duties and discharge the responsibilities of the licensed occupation
of a person who has been convicted of a crime, the licensing authority
shall consider, in addition to the factors listed in §53.022:
(i) the extent and nature of the person's past criminal activity;
(ii) the age of the person when the crime was committed; (iii) the
amount of time that has elapsed since the person's last criminal activity;
(iv) the conduct and work activity of the person before and after
the criminal activity; (v) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release; and
(vi) other evidence of the person's fitness, including letters of
recommendation from: (A) prosecutors and law enforcement and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person; (B) the sheriff or chief of police in the community
where the person resides; and (C) any other person in contact with
the convicted person.
Section 53.023(b) states that the applicant has the responsibility,
to the extent possible, to obtain and provide to the licensing authority
the recommendations of the prosecution, law enforcement, and correctional
authorities as required by §53.023(a)(6).
Section 53.023(c) states that in addition to fulfilling the requirements
of §53.023(b), the applicant shall furnish proof in the form
required by the licensing authority that the applicant has: (i) maintained
a record of steady employment; (ii) supported the applicant's dependents;
(iii) maintained a record of good conduct; and (iv) paid all outstanding
court costs, supervision fees, fines, and restitution ordered in any
criminal case in which the applicant has been convicted.
Section 53.025(a) states that each licensing authority shall issue
guidelines relating to the practice of the licensing authority under
Chapter 53. Further, the guidelines must state the reasons a particular
crime is considered to relate to a particular license and any other
criterion that affects the decisions of the licensing authority.
Section 53.025(b) states that a state licensing authority that
issues guidelines under §53.025 shall file the guidelines with
the secretary of state for publication in the
Texas
Register.
Section 53.025(c) states that a local or county licensing authority
that issues guidelines under §53.025 shall post the guidelines
at the courthouse for the county in which the licensing authority
is located or publish the guidelines in a newspaper having countywide
circulation in that county.
Section 53.025(d) provides that amendments to the guidelines, if
any, shall be issued annually.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (i) perform its duties
and conduct proceedings before the Board; (ii) regulate the practice
of professional nursing and vocational nursing; (iii) establish standards
of professional conduct for license holders Chapter 301; and (iv)
determine whether an act constitutes the practice of professional
nursing or vocational nursing.
Section 301.1545(a) provides that the Board shall adopt rules and
guidelines necessary to comply with Chapter 53, except to the extent
the requirements of Subtitle E are stricter than the requirements
of Chapter 53.
Section 301.1545(b) states that, in its rules under §301.1545,
the Board shall list the offenses for which a conviction would constitute
grounds for the Board to take action under §53.021 or for which
placement on deferred adjudication community supervision would constitute
grounds for the Board to take action under Chapter 301.
Section 301.452(a) defines intemperate use to include practicing
nursing or being on duty or on call while under the influence of alcohol
or drugs.
Section 301.452(b) provides that a person is subject to denial
of a license or to disciplinary action under Subchapter J for: (i)
a violation of Chapter 301, a rule or regulation not inconsistent
with Chapter 301, or an order issued under Chapter 301; (ii) fraud
or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (iii) a conviction for,
or placement on deferred adjudication community supervision or deferred
disposition for, a felony or for a misdemeanor involving moral turpitude;
(iv) conduct that results in the revocation of probation imposed because
of conviction for a felony or for a misdemeanor involving moral turpitude;
(v) use of a nursing license, diploma, or permit, or the transcript
of such a document, that has been fraudulently purchased, issued,
counterfeited, or materially altered; (vi) impersonating or acting
as a proxy for another person in the licensing examination required
under §301.253 or §301.255; (vii) directly or indirectly
aiding or abetting an unlicensed person in connection with the unauthorized
practice of nursing; (viii) revocation, suspension, or denial of,
or any other action relating to, the person's license or privilege
to practice nursing in another jurisdiction; (ix) intemperate use
of alcohol or drugs that the Board determines endangers or could endanger
a patient; (x) unprofessional or dishonorable conduct that, in the
Board's opinion, is likely to deceive, defraud, or injure a patient
or the public; (xi) adjudication of mental incompetency; (xii) lack
of fitness to practice because of a mental or physical health condition
that could result in injury to a patient or the public; or (xiii)
failure to care adequately for a patient or to conform to the minimum
standards of acceptable nursing practice in a manner that, in the
Board's opinion, exposes a patient or other person unnecessarily to
risk of harm.
Section 301.452(c) provides that the Board may refuse to admit
a person to a licensing examination for a ground described under §301.452(b).
Section 301.452(d) provides that the Board by rule shall establish
guidelines to ensure that any arrest information, in particular information
on arrests in which criminal action was not proven or charges were
not filed or adjudicated, that is received by the Board under §301.452
is used consistently, fairly, and only to the extent the underlying
conduct relates to the practice of nursing.
Section 301.4521(a) defines the term "applicant" as a petitioner
for a declaratory order of eligibility for a license or an applicant
for an initial license or renewal of a license and the term "evaluation"
as a physical or psychological evaluation conducted to determine a
person's fitness to practice nursing.
Section 301.4521(b) provides that the Board may require a nurse
or applicant to submit to an evaluation only if the Board has probable
cause to believe that the nurse or applicant is unable to practice
nursing with reasonable skill and safety to patients because of: (i)
physical impairment; (ii) mental impairment; or (iii) chemical dependency
or abuse of drugs or alcohol.
Section 301.4521(c) provides that a demand for an evaluation under §301.4521(b)
must be in writing and state: (i) the reasons probable cause exists
to require the evaluation; and (ii) that refusal by the nurse or applicant
to submit to the evaluation will result in an administrative hearing
to be held to make a final determination of whether probable cause
for the evaluation exists.
Section 301.4521(d) states that, if the nurse or applicant refuses
to submit to the evaluation, the Board shall schedule a hearing on
the issue of probable cause to be conducted by SOAH. The nurse or
applicant must be notified of the hearing by personal service or certified
mail. The hearing is limited to the issue of whether the Board had
probable cause to require an evaluation. The nurse or applicant may
present testimony and other evidence at the hearing to show why the
nurse or applicant should not be required to submit to the evaluation.
The Board has the burden of proving that probable cause exists. At
the conclusion of the hearing, the hearing officer shall enter an
order requiring the nurse or applicant to submit to the evaluation
or an order rescinding the Board's demand for an evaluation. The order
may not be vacated or modified under the Government Code §2001.058.
Section 301.4521(e) states that, if a nurse or applicant refuses
to submit to an evaluation after an order requiring the evaluation
is entered under §301.4521(d), the Board may: (i) refuse to issue
or renew a license; (ii) suspend a license; or (iii) issue an order
limiting the license.
Section 301.4521(f) provides that the Board may request a nurse
or applicant to consent to an evaluation by a practitioner approved
by the Board for a reason other than a reason listed in §301.4521(b).
A request for an evaluation under §301.4521(f) must be in writing
and state: (i) the reasons for the request; (ii) the type of evaluation
requested; (iii) how the Board may use the evaluation; (iv) that the
nurse or applicant may refuse to submit to an evaluation; and (v)
the procedures for submitting an evaluation as evidence in any hearing
regarding the issuance or renewal of the nurse's or applicant's license.
Section 301.4521(g) states that, if a nurse or applicant refuses
to consent to an evaluation under §301.4521(f), the nurse or
applicant may not introduce an evaluation into evidence at a hearing
to determine the nurse's or applicant's right to be issued or retain
a nursing license unless the nurse or applicant: (i) not later than
the 30th day before the date of the hearing, notifies the Board that
an evaluation will be introduced into evidence at the hearing; (ii)
provides the Board the results of that evaluation; (iii) informs the
Board of any other evaluations by any other practitioners; and (iv)
consents to an evaluation by a practitioner that meets Board standards
established under §301.4521(h).
Section 301.4521(h) provides that the Board shall establish by
rule the qualifications for a licensed practitioner to conduct an
evaluation under §301.4521. The Board shall maintain a list of
qualified practitioners. The Board may solicit qualified practitioners
located throughout the state to be on the list.
Section 301.4521(i) states that a nurse or applicant shall pay
the costs of an evaluation conducted under §301.4521.
Section 301.4521(j) provides that the results of an evaluation
under §301.4521 are: (i) confidential and not subject to disclosure
under the Government Code Chapter 552; (ii) not subject to disclosure
by discovery, subpoena, or other means of legal compulsion for release
to anyone, except that the results may be: (A) introduced as evidence
in a proceeding before the Board or a hearing conducted by SOAH under
Chapter 301; or (B) included in the findings of fact and conclusions
of law in a final Board order.
Section 301.4521(k) provides that, if the Board determines there
is insufficient evidence to bring action against a person based on
the results of any evaluation under §301.4521, the evaluation
must be expunged from the Board's records.
Section 301.4521(l) requires the Board to adopt guidelines for
requiring or requesting a nurse or applicant to submit to an evaluation
under §301.4521.
Section 301.4521(m) states that the authority granted to the Board
under §301.4521 is in addition to the Board's authority to make
licensing decisions under Chapter 301.
Section 301.453(a) provides that, if the Board determines that
a person has committed an act listed in §301.452(b), the Board
shall enter an order imposing one or more of the following: (i) denial
of the person's application for a license, license renewal, or temporary
permit; (ii) issuance of a written warning; (iii) administration of
a public reprimand; (iv) limitation or restriction of the person's
license, including limiting to or excluding from the person's practice
one or more specified activities of nursing or stipulating periodic
Board review; (v) suspension of the person's license for a period
not to exceed five years; (vi) revocation of the person's license;
or (vii) assessment of a fine.
Section 301.453(b) provides that, in addition to or instead of
an action under §301.453(a), the Board, by order, may require
the person to: (i) submit to care, counseling, or treatment by a health
provider designated by the Board as a condition for the issuance or
renewal of a license; (ii) participate in a program of education or
counseling prescribed by the Board; (iii) practice for a specified
period under the direction of a registered nurse or vocational nurse
designated by the Board; or (iv) perform public service the Board
considers appropriate.
Section 301.453(c) provides that the Board may probate any penalty
imposed on a nurse and may accept the voluntary surrender of a license.
The Board may not reinstate a surrendered license unless it determines
that the person is competent to resume practice.
Section 301.453(d) states that if the Board suspends, revokes,
or accepts surrender of a license, the Board may impose conditions
for reinstatement that the person must satisfy before the Board may
issue an unrestricted license.
Section 301.4531(a) states that the Board by rule shall adopt a
schedule of the disciplinary sanctions that the Board may impose under
Chapter 301. In adopting the schedule of sanctions, the Board shall
ensure that the severity of the sanction imposed is appropriate to
the type of violation or conduct that is the basis for disciplinary
action.
Section 301.4531(b) states, in determining the appropriate disciplinary
action, including the amount of any administrative penalty to assess,
the Board shall consider: (i) whether the person is being disciplined
for multiple violations of either Chapter 301 or a rule or order adopted
under Chapter 301 or has previously been the subject of disciplinary
action by the Board and has previously complied with Board rules and
Chapter 301; (ii) the seriousness of the violation; (iii) the threat
to public safety; and (iv) any mitigating factors.
Section 301.4531(c) provides that, in the case of a person described
by §301.4531(b)(1)(A), the Board shall consider taking a more
severe disciplinary action, including revocation of the person's license,
than the disciplinary action that would be taken for a single violation;
and in the case of a person described by §301.4531(b)(1)(B),
the Board shall consider taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action that would be taken for a person who has not previously been
the subject of disciplinary action by the Board.
Section 301.4535(a) provides that the Board shall suspend a nurse's
license or refuse to issue a license to an applicant on proof that
the nurse or applicant has been initially convicted of: (i) murder
under Section 19.02, Penal Code, capital murder under Section 19.03,
Penal Code, or manslaughter under Section 19.04, Penal Code; (ii)
kidnapping or unlawful restraint under Chapter 20, Penal Code, and
the offense was punished as a felony or state jail felony; (iii) sexual
assault under Section 22.011, Penal Code; (iv) aggravated sexual assault
under Section 22.021, Penal Code; (v) continuous sexual abuse of young
child or children under Section 21.02, Penal Code, or indecency with
a child under Section 21.11, Penal Code; (vi) aggravated assault under
Section 22.02, Penal Code; (vii) intentionally, knowingly, or recklessly
injuring a child, elderly individual, or disabled individual under
Section 22.04, Penal Code; (viii) intentionally, knowingly, or recklessly
abandoning or endangering a child under Section 22.041, Penal Code;
(ix) aiding suicide under Section 22.08, Penal Code, and the offense
was punished as a state jail felony; (x) an offense under Section
25.07, Penal Code, punished as a felony; (xi) an offense under Section
25.071, Penal Code, punished as a felony; (xii) an agreement to abduct
a child from custody under Section 25.031, Penal Code; (xiii) the
sale or purchase of a child under Section 25.08, Penal Code; (xiv)
robbery under Section 29.02, Penal Code; (xv) aggravated robbery under
Section 29.03, Penal Code; (xvi) an offense for which a defendant
is required to register as a sex offender under Chapter 62, Code of
Criminal Procedure; or (xvii) an offense under the law of another
state, federal law, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense
listed in this subsection.
Section 301.4535(a-1) states that an applicant or nurse who is
refused an initial license or renewal of a license or whose license
is suspended under §301.4535(a) is not eligible for a probationary,
stipulated, or otherwise encumbered license unless the Board establishes
by rule criteria that would permit the issuance or renewal of the
license.
Section 301.4535(b) states that on final conviction or a plea of
guilty or nolo contendere for an offense listed in §301.4535(a),
the Board, as appropriate, may not issue a license to an applicant,
shall refuse to renew a license, or shall revoke a license.
Section 301.4535(c) states that a person is not eligible for an
initial license or for reinstatement or endorsement of a license to
practice nursing in this state before the fifth anniversary of the
date the person successfully completed and was dismissed from community
supervision or parole for an offense described by §301.4535(a).
Cross Reference to Statute.
The following statutes are affected by this proposal: the Occupations
Code Chapter 53 and §§301.151, 301.1545, 301.452, 301.4521,
301.453, 301.4531, and 301.4535.
§213.33.Factors Considered for Imposition of Penalties/Sanctions.
(a)
(No change.)
(b)
The Disciplinary Matrix is as follows:
Figure: 22 TAC §213.33(b) (.pdf)
(c) - (f)
(No change.)
(g)
The following disciplinary and eligibility sanction
policies and guidelines shall be used by the Board and SOAH when determining
the appropriate penalty/sanction in disciplinary and eligibility matters:
(1) - (4)
(No change.)
(5)
Disciplinary Guidelines for Criminal Conduct approved
by the Board and published [
(h) - (m)
(No change.)
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on May 3, 2013.
TRD-201301766
Jena Abel
Assistant General Counsel
Texas Board of Nursing
Earliest possible date of adoption: June 16, 2013
For further information, please call: (512) 305-6822
fiscal
] year
in
even years
, the board shall elect from among its membership
a vice president.
The term of the vice president shall be for
two years. If the office of vice president becomes vacant during a
two-year term, the members of the board shall elect a new vice president
from among its membership to serve for the remainder of the term.
All
elections and any other issues requiring a vote of the board shall
be decided by a simple majority of the members present and voting.
Chapter 213.
PRACTICE AND PROCEDURE
or
]
the Board in evaluating good professional character in eligibility
and disciplinary matters:
on March 9, 2007
] in the
May
17, 2013, issue of the
Texas Register
[
(32 TexReg 1409)
] and available on the Board's website at
http://www.bon.texas.gov/disciplinaryaction/discp-guide.html
[
http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html
].
or
]
the Board in evaluating the impact of criminal conduct on nurse licensure
in eligibility and disciplinary matters:
on March 9, 2007
] in the
May
17, 2013, issue of the
Texas Register
[
(32 TexReg 1409)
] and available on the Board's website at
http://www.bon.texas.gov/disciplinaryaction/discp-guide.html
[
http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html
].
or
]
the Board in evaluating the appropriate licensure determination or
sanction in eligibility and disciplinary matters:
on March 9, 2007
] in the
May
17, 2013, issue of the
Texas Register
[
(32 TexReg 1409)
] and available on the Board's website
at
http://www.bon.texas.gov/disciplinaryaction/discp-guide.html
[
http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html
].
on March 9, 2007
] in the
May
17, 2013, issue of the
Texas Register
[
(32 TexReg 1409)
] and available on the Board's website at
http://www.bon.texas.gov/disciplinaryaction/discp-guide.html
[
http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html
].
on March 9, 2007
] in the
May
17, 2013, issue of the
Texas Register
[
(32 TexReg 1409)
] and available on the Board's website at
http://www.bon.texas.gov/disciplinaryaction/discp-guide.html
[
http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html
].
Chapter 217.
LICENSURE, PEER ASSISTANCE AND PRACTICE