Texas Register, Volume 36, Number 15, Pages 2295-2542, April 15, 2011 Page: 2,395
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The Commission or Board may also require the petitioner to complete
additional training to assure the petitioner's competency to practice fu-
neral directing and/or embalming. With an agreed order, the commis-
sion may probate the license not less than two (2) years.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's
Filed with the Office of the Secretary of State on April 4, 2011.
O. C. "Chet" Robbins
Texas Funeral Service Commission
Effective date: April 24, 2011
Proposal publication date: January 7, 2011
For further information, please call: (512) 936-2469
TEXAS BOARD OF NURSING
CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC 213.33
Introduction. The Texas Board of Nursing (Board) adopts
amendments to 213.33 (relating to Factors Considered for
Imposition of Penalties/Sanctions) without changes to the pro-
posed text as published in the February 25, 2011, issue of the
Texas Register (36 TexReg 1221) and will not be republished.
Reasoned Justification. These amendments are adopted under
the Occupations Code 301.452, 301.453, and 301.151 and
formalize the Board's historical practice regarding default cases.
The Board is charged with protecting the health and safety of the
public. One way in which the Board fulfills this obligation is by
regulating the conduct of its licensees. When a licensee com-
mits a violation of the Nursing Practice Act (Occupations Code
Chapter 301), the Board is authorized to take disciplinary ac-
tion against the licensee. The goal of the disciplinary action is
to identify the unsafe, incompetent, or illegal conduct of the li-
censee and effectuate its remediation. This goal, however, is ob-
viated in default cases. A default case occurs when a licensee,
despite being sent proper notice, fails to appear for a formal ad-
ministrative hearing at the State Office of Administrative Hear-
ings (SOAH). Historically, the Board has revoked the licensee's
nursing license in such cases.
At the outset, a licensee has several opportunities to settle a
disciplinary matter informally with the Board before it is set for a
formal administrative hearing at SOAH. For example, when the
Board receives a complaint against a licensee, the Board informs
the licensee of the complaint, and the licensee is afforded an op-
portunity to respond to the allegations. If the complaint is sub-
stantiated, the licensee is offered a proposed disciplinary order
in an effort to resolve the matter informally. The licensee may ac-
cept the proposed order, request changes to the proposed order,
or decline the proposed order. The licensee may also request to
attend an informal settlement conference at the Board's offices
in order to discuss the underlying allegations or the proposed
order in greater detail. All licensees are entitled to retain legal
counsel at any time during the disciplinary process and to exam-
ine evidence collected by the Board. Once all reasonable efforts
towards resolving the matter informally have been exhausted;
the matter is scheduled for a formal administrative hearing at
SOAH. If a licensee purposefully ceases communication with the
Board, however, the matter is scheduled for a formal administra-
tive hearing at SOAH without further attempts at resolving the
In some instances, a licensee will respond to the initial allega-
tions filed against him/her, but will then cease further commu-
nication with the Board. For example, the licensee may stop
returning phone calls from Board Staff or may refuse certified
mailings from the Board. Although the licensee has been made
aware of the pending allegations against him/her and the Board's
ongoing investigation, the licensee chooses to ignore the resolu-
tion of the matter. As a result, the Board has no choice but to set
the matter for resolution through a formal administrative hear-
ing at SOAH. The Board sends a written notice of the scheduled
administrative hearing to the licensee. However, the licensee
typically ignores or rejects this mailing and fails to appear for the
scheduled administrative hearing. The Board then revokes the
licensee's nursing license.
The goal of a disciplinary action is to effectuate the successful
remediation of the unsafe, incompetent, or illegal conduct of
a licensee. In order to accomplish this, a licensee must first
acknowledge that his/her conduct is a violation of the Nursing
Practice Act. The licensee must then be willing to comply with
the Board's requirements for the remediation of the conduct.
Depending upon the nature of the licensee's conduct, the
Board may require the licensee to complete remedial education
courses, to undergo random drug screening, or to participate
in therapy. The Board may also require the licensee to be
supervised or periodically evaluated by his/her employer. In
order for the remediation to be successful, the licensee must
understand the Board's requirements and be willing to comply
with them. This cannot occur in a default case.
Once a licensee stops responding to the Board's efforts to re-
solve a disciplinary matter, few options remain for assuring the
remediation of the licensee's conduct. Because the licensee re-
fuses to communicate with the Board, the licensee cannot accept
responsibility for his/her conduct or the Board's requirements for
the remediation of such conduct. As a result, the Board cannot
be assured that the licensee's conduct will be successfully re-
mediated, and the licensee remains a risk to the public health
and safety. This concern, however, is alleviated if the individ-
ual's nursing license is revoked. Once revoked, the individual
cannot continue to practice nursing, and the risk to the public
health and safety is significantly reduced, if not eliminated alto-
gether. Further, if the licensee wishes to have his/her nursing
license reinstated, the licensee must reestablish communication
with the Board. Once communication is reestablished, the Board
can address its requirements for reinstating the licensee's nurs-
ing license, the licensee's underlying conduct, and any require-
ments for the successful remediation of the conduct.
The revocation of a licensee's nursing license in a default case
also enables the Board to resolve disciplinary cases in a more
efficient manner, as it eliminates the need to initiate repetitive
disciplinary proceedings against the same licensee for noncom-
pliance with a prior Board order. A licensee is subject to disci-
plinary action under the Nursing Practice Act for noncompliance
with the terms of a prior Board order. A licensee who has re-
peatedly ignored or rejected mailings from the Board and who
fails to appear for a scheduled administrative hearing at SOAH
is unlikely to successfully complete the requirements of a Board
order, as the licensee would not be aware that the order was
ADOPTED RULES April 15, 2011 36 TexReg 2395
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Texas. Secretary of State. Texas Register, Volume 36, Number 15, Pages 2295-2542, April 15, 2011, periodical, April 15, 2011; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth176615/m1/100/: accessed July 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.