Texas Register, Volume 34, Number 45, Pages 7717-7924, November 06, 2009 Page: 7,812
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states that the Executive Director shall report periodically to the
Board on the corrective actions imposed under Subchapter N,
including: (i) the number of corrective actions imposed; (ii) the
types of violations for which corrective actions were imposed;
and (iii) whether affected nurses accepted the corrective actions.
The Occupations Code 301.657(a) states that, except to the ex-
tent provided by 301.657, a person's acceptance of a corrective
action under Subchapter N does not constitute an admission of a
violation but does constitute a plea of nolo contendere. The Oc-
cupations Code 301.657(b) provides that the Board may treat
a person's acceptance of corrective action as an admission of
a violation if the Board imposes a sanction on the person for a
subsequent violation of Chapter 301 or a rule or order adopted
under Chapter 301. The Occupations Code 301.151 authorizes
the Board to adopt and enforce rules consistent with Chapter 301
and necessary to: (1) perform its duties and conduct proceed-
ings before the Board; (2) regulate the practice of professional
nursing and vocational nursing; (3) establish standards of pro-
fessional conduct for license holders Chapter 301; and (4) de-
termine whether an act constitutes the practice of professional
nursing or vocational nursing.
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 October 26,
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: September 4, 2009
For further information, please call: (512) 305-6822
CHAPTER 213. PRACTICE AND PROCEDURE
22 TAC 213.20, 213.29, 213.30
INTRODUCTION. The Texas Board of Nursing (Board) adopts
amendments to 213.20, concerning Informal Proceedings
and Alternate Dispute Resolution (ADR); 213.29, concerning
Criteria and Procedure Regarding Intemperate Use and Lack
of Fitness in Eligibility and Disciplinary Matters; and 213.30,
concerning Declaratory Order of Eligibility for Licensure. The
amendments to 213.20 are adopted without changes to the
proposed text as published in the September 11, 2009, issue
of the Texas Register (34 TexReg 6255). Section 213.29 and
213.30 are adopted with changes. Section 213.33, concerning
Factors Considered for Imposition of Penalties/Sanctions and/or
Fines, is withdrawn.
REASONED JUSTIFICATION. The amendments to 213.20,
213.29, and 213.30 are adopted under the Occupations Code
301.452, 301.4521, and 301.151. The adopted amendments
to 213.20 are necessary to clarify the applicability of the Occu-
pations Code 301.4521. The adopted amendments to 213.29
and 213.30 are necessary for internal consistency and to cor-
rect grammatical errors. Section 213.33 is withdrawn. As a re-
sult, the provisions of 213.33 that were originally proposed for
amendment are fully restored.
The Board formally proposed amendments to 213.20, 213.29,
213.30, and 213.33 in the September 11, 2009, issue of the
Texas Register (34 TexReg 6255). A public hearing on the rule
proposal was not requested. The Board received two written
comments on the published proposal. The Board's Eligibility and
Disciplinary Advisory Committee (Committee) also considered
the proposal at its September 17, 2009, meeting. Based upon
the comments received, the Board has made minor changes to
213.29 and 213.30 as adopted. Further, as a result of com-
ments received, the Board has withdrawn 213.33 as proposed.
However, none of the changes made to the proposed text mate-
rially alters issues raised in the proposal, introduces new subject
matter, or affects persons other than those previously on notice.
The Occupations Code 301.4521, which was enacted by the
81st Legislature, Regular Session, effective June 19, 2009, au-
thorizes the Board to (i) require an individual to submit to a phys-
ical or psychological evaluation if the Board has probable cause
to believe that the individual is unable to practice nursing safely
due to physical impairment, mental impairment, chemical depen-
dency, or abuse of drugs or alcohol and (ii) request an individual
to submit to a physical or psychological evaluation if the Board
believes that the individual is unable to practice nursing safely
for a reason other than physical impairment, mental impairment,
chemical dependency, or abuse of drugs or alcohol. Section
301.4521 also requires the Board to adopt (i) guidelines for re-
quiring or requesting an individual to submit to an evaluation and
(ii) rules regarding the qualifications for a licensed practitioner to
conduct an evaluation.
The amendments to 213.33 were proposed pursuant to
301.4521. The proposed amendments specified circum-
stances under which an evaluation under 301.4521 would be
required and/or requested by the Board; prescribed the cre-
dentials that an evaluator must possess in order to conduct an
evaluation under 301.4521; and prescribed the requirements
that an evaluation must meet under 301.4521. In response
to the Board's proposal, commenters stated that the proposed
amendments should better reflect that 301.4521 addresses
evaluations required by the Board and evaluations requested
by the Board differently. Commenters also questioned the
necessity of testing for professional character and veracity as
part of an evaluation related to physical impairment, mental im-
pairment, or chemical dependency or drug abuse. Commenters
also recommended that the Board consider approving additional
types of health care providers, such as nurse practitioners, to
conduct physical or psychological evaluations under 301.4521.
Although the Board does not agree with all of the comments re-
ceived, the Board has determined that it should further review
the comments before adopting the amendments to 213.33 as
proposed. The Board has also determined that additional sub-
stantive amendments to 213.33, which were not originally pro-
posed, may now be necessary. Further, for purposes of clarity
and consistency, the Board has determined that the proposed
amendments to 213.33 should be addressed in the same rule
proposal. As such, the Board has determined that it should ad-
dress the amendments to 213.33 through a separate rulemak-
ing process. Therefore, the Board is withdrawing 213.33 as
proposed. As a result, each provision in 213.33 that was origi-
nally proposed for amendment is fully restored.
Further, as a result of the restoration of the provisions in
213.33, the Board has determined that it is necessary to make
minor changes to 213.29(c)(1) and 213.30(b)(3) as adopted.
The title of 213.33 was originally proposed for amendment.
34 TexReg 7812 November 6, 2009
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Texas. Secretary of State. Texas Register, Volume 34, Number 45, Pages 7717-7924, November 06, 2009, periodical, November 6, 2009; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth90877/m1/93/: accessed December 12, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.