Texas Register, Volume 37, Number 28, Pages 5177-5392, July 13, 2012 Page: 5,272
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for at least six months. Section 201.152 authorizes the Board to
adopt rules necessary to regulate the practice of chiropractic.
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 June 27, 2012.
Texas Board of Chiropractic Examiners
Effective date: July 17, 2012
Proposal publication date: April 6, 2012
For further information, please call: (512) 305-6716
PART 11. 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(c), concerning Factors Considered
for Imposition of Penalties/Sanctions. These amendments are
adopted without changes to the proposed text published in the
May 18, 2012, issue of the Texas Register (37 TexReg 3668)
and will not be republished.
Reasoned Justification. The amendments to 213.33(c)
are adopted under the authority of the Occupations Code
301.151, 301.304, 301.452, 301.453, 301.4531,and 301.502
and are necessary to: (i) implement the requirements of House
Bill (HB) 2975 and Senate Bill (SB) 1360, both enacted by the
82nd Legislature, R.S., effective September 1, 2011; and (ii)
clarify the proper application of the mitigating factors enumer-
ated in the existing subsection.
During the past legislative session, the Legislature passed com-
panion bills, HB 2975 and SB 1360, addressing continuing ed-
ucation for physicians and nurses whose practice includes the
treatment of tick-borne diseases. Pursuant to the legislation,
license holders whose practice includes the treatment of tick-
borne diseases are encouraged, but not required, to participate
in continuing education relating to the treatment of tick-borne dis-
eases during each two year licensing period. Under the bills' re-
quirements, the Board is required to adopt rules that establish
the content of the continuing education courses and identify the
license holders who will be encouraged to complete the contin-
uing education. Also subject to the bills' requirements, contin-
uing education courses that represent an appropriate spectrum
of relevant medical clinical treatment relating to tick-borne dis-
eases must qualify as approved continuing education courses
for license renewal. The legislation also requires the Board to
consider, if relevant, a license holder's participation in a con-
tinuing education course meeting the Board's content require-
ments if the license holder is being investigated by the Board for
his/her selection of clinical care for the treatment of tick-borne
diseases and the license holder completed the continuing edu-
cation course not more than two years prior to the beginning of
the Board's investigation. In adopting its rules, the legislation
also requires the Board to consult and cooperate with the Texas
Medical Board, seek input from affected parties, and review rel-
evant courses, including courses that have been approved in
Consistent with the bills' mandate, the adopted amendments to
213.33(c) require an individual's completion of a continuing ed-
ucation course relating to the treatment of tick-borne disease to
be considered as a potentially mitigating factor in an eligibility
or disciplinary matter involving the individual's selection of clin-
ical care for the treatment of tick-borne diseases, provided the
individual completed the course no more than two years before
the start of the Board's investigation. This amendment is consis-
tent with the specific requirements of 301.304(c). The adopted
amendments implementing the remaining requirements of HB
2975 and SB 1360 are published elsewhere in this issue of the
Section 213.33(c) prescribes the factors that must be utilized
when determining the appropriate sanction in an eligibility or dis-
ciplinary matter. The factors prescribed by the rule must be used
in conjunction with the Board's Disciplinary Matrix, and both ag-
gravating factors and mitigating factors must be analyzed in de-
termining the appropriate tier and sanction level of the Disci-
plinary Matrix for a particular violation or multiple violations of the
Nursing Practice Act (Occupations Code Chapter 301) and/or
Board rules. The adopted amendments clarify, however, that the
mere existence of mitigating factors in a particular matter does
not necessary mean that a dismissal of the matter is required
or appropriate. Rather, the aggravating and mitigating factors in
each matter must be carefully considered. The existence of ap-
propriate mitigating factors may reduce the severity of the sanc-
tion in a particular matter, but it does not automatically or nec-
essarily equate to a dismissal of the matter. Any presumption to
the contrary is a misapplication of the Board's rule. The adopted
amendments are designed to reiterate the appropriate applica-
tion of the factors enumerated in 213.33(c) and to encourage
consistent application of the Board's Disciplinary Matrix in all el-
igibility and disciplinary matters.
How the Sections Will Function. Adopted 213.33(c)(17) pro-
vides that an individual's participation in a continuing education
course described in 22 TAC 216.3(f) (relating to Requirements)
must be considered when determining the appropriate sanction
in a matter where the individual is being investigated by the
Board for the individual's selection of clinical care for the treat-
ment of tick-borne diseases, provided the individual completed
the course not more than two years before the start of the
Board's investigation. Adopted 213.33(c)(18) renumbers the
paragraphs correctly and states that the presence of mitigating
factors does not constitute a requirement of dismissal of a
violation of the Nursing Practice Act and/or Board rules.
Summary of Comments and Agency Response. The Board did
not receive any comments on the proposal.
Statutory Authority. The amendments are adopted under the
Occupations Code 301.151, 301.304, 301.452, 301.453,
301.4531, and 301.502.
Section 301.151 authorizes the Board to adopt and enforce rules
consistent with Chapter 301 and necessary to: (1) perform its
duties and conduct proceedings before the Board; (2) regulate
the practice of professional nursing and vocational nursing; (3)
establish standards of professional conduct for license holders
under Chapter 301; and (4) determine whether an act constitutes
the practice of professional nursing or vocational nursing.
Section 301.304(a) states that, as part of the continuing educa-
tion requirements under 301.303, a license holder whose prac-
37 TexReg 5272 July 13, 2012 Texas Register
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Texas. Secretary of State. Texas Register, Volume 37, Number 28, Pages 5177-5392, July 13, 2012, periodical, July 13, 2012; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth243957/m1/92/: accessed July 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.