Texas Register, Volume 38, Number 27, Pages 4243-4444, July 5, 2013 Page: 4,339
4243-4444 p. ; 28 cm.View a full description of this periodical.
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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 consti-
tute grounds for the Board to take action under 53.021 or for
which placement on deferred adjudication community supervi-
sion 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 vi-
olation 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 prac-
tice professional nursing or vocational nursing; (iii) a conviction
for, or placement on deferred adjudication community supervi-
sion or deferred disposition for, a felony or for a misdemeanor
involving moral turpitude; (iv) conduct that results in the revoca-
tion of probation imposed because of conviction for a felony or
for a misdemeanor involving moral turpitude; (v) use of a nurs-
ing license, diploma, or permit, or the transcript of such a doc-
ument, that has been fraudulently purchased, issued, counter-
feited, 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 unautho-
rized 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 pub-
lic; 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 estab-
lish 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 applicantfor an initial license or renewal of a license and the term "eval-
uation" 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 prob-
able cause to believe that the nurse or applicant is unable to
practice nursing with reasonable skill and safety to patients be-
cause 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 re-
fusal by the nurse or applicant to submit to the evaluation will
result in an administrative hearing to be held to make a final de-
termination 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 hear-
ing on the issue of probable cause to be conducted by SOAH.
The nurse or applicant must be notified of the hearing by per-
sonal service or certified mail. The hearing is limited to the issue
of whether the Board had probable cause to require an evalua-
tion. The nurse or applicant may present testimony and other ev-
idence 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 requir-
ing the nurse or applicant to submit to the evaluation or an or-
der 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 ap-
proved 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 eval-
uation as evidence in any hearing regarding the issuance or re-
newal 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 appli-
cant 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 practition-
ers located throughout the state to be on the list.ADOPTED RULES July 5, 2013 38 TexReg 4339
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Texas. Secretary of State. Texas Register, Volume 38, Number 27, Pages 4243-4444, July 5, 2013, periodical, July 5, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth326801/m1/96/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.