And the Texas Board of Nursing Strikes Back

On May 18th, the Texas Board of Nursing will publish proposed changes (after the jump) to section 213.26 of the Texas Administrative Code. The changes, if approved in their entirety, will essentially neuter the State Office of Administrative Hearings and render formal hearings before SOAH almost superfluous by removing the ability of the Administrative Law Judge to propose a sanction based on the findings of fact and conclusions of law.

In effect, this would remove the final hurdle from the Board issuing almost any sanction that the Board staff wants to impose with no effective judicial oversight without appeal. Think of this as having a criminal trial, being found guilty (but without the requirement of finding guilt beyond a reasonable doubt – the Board only has to prove something by a preponderance of the evidence standard, or “more likely than not”) and then having the district attorney impose the sentence without the judge or jury having a say.

I suspect there will be some public comment on this matter.  The Texas Register text (to be published May 18th) follows the jump:

Introduction. The Texas Board of Nursing (Board) proposes amendments to §213.23 (relating to Decision of the Board). These amendments are proposed under the authority of the Occupations Code §§301.151, 301.452, and 301.459(a) and the Government Code §§2001.004, 2001.058, 2001.062, 2001.141, and 2003.021(a) and are necessary to: (i) clarify the Board’s existing requirements for submitting written materials to the Board and making oral presentations to the Board; (ii) facilitate fully informed Board deliberation and decisions; and (iii) specify that proposals for decision (PFDs) may not contain recommendations for sanctions, in accordance with applicable law.

Clarification of Existing Requirements

The Board adopted rules in November 2009 (34 TexReg 7818) establishing specific procedures and requirements for individuals wishing to make an oral presentation to the Board regarding a PFD. The adoption of these requirements stemmed from Board deliberation and discussion at its regularly scheduled April 2009 meeting regarding its practice of allowing individuals to make oral presentations regarding PFDs. Historically, the Board permitted an individual affected by a PFD to make an oral presentation to the Board prior to its final deliberation and decision on the PFD. This practice was originally intended to provide individuals with an additional opportunity to be heard and to maintain a sense of fairness in Board decisions, despite the fact that the law did not require that such an opportunity be provided to the individual once the individual was afforded a hearing at the State Office of Administrative Hearings (SOAH). Over time, it became clear that most individuals utilized the oral forum to present information to the Board that was not considered during the administrative hearing. The Board determined that the receipt and consideration of such potentially problematic information should be controlled. As a result, the Board re-considered its policy of permitting individuals to make oral presentations regarding PFDs at its April 2009 Board meeting and voted to amend its policy to allow individuals to make oral presentations prior to the Board’s deliberation and decision on a PFD only if the individual provided, in advance of the Board meeting, written argument, exceptions, and briefs for the Board’s consideration. Not only were these requirements designed to guard against potential agency error, but the requirements were consistent with the intent of the Government Code §2001.062, which contemplates the presentation of legal argument through the submission of written exceptions and briefs and written responses to exceptions and briefs. Rule amendments implementing these requirements were formally proposed by the Board in August 2009 and became effective on November 15, 2009. These amendments were consistent with the Occupations Code §301.151, which authorizes the Board to adopt rules necessary to conduct proceedings before it.

Since the adoption of these requirements in 2009, individuals have continued to submit written materials to the Board outside of the rule’s prescribed timelines. Further, several individuals have commented that the rule’s requirements are confusing as written. As a result, the proposed amendments to §213.23(f) are intended to clarify the procedures and requirements first adopted by the Board in 2009.

The proposed amendments to §213.23(f) do not dramatically alter the existing requirements of the rule. However, the formatting and wording of the subsection has been altered in an effort to clarify the applicability of the requirements to certain factual situations. First, the proposed amendments recognize that some individuals may not wish to make an oral presentation to the Board. These individuals, however, may wish to submit written exceptions and briefs to the Board and are entitled to do so under the Government Code §2001.062. As such, and in compliance with §2001.062, proposed amended §213.23(f)(1) affords all individuals the opportunity to file written materials regarding a PFD with the Board. However, in order to ensure that Board members have an adequate amount of time to review the written materials prior to the Board’s deliberation on the matter, the proposed amendment also requires the individuals to submit the written materials to the Board no later than ten days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. The proposed amendment also makes clear that the Board will not consider any written materials submitted outside of this prescribed timeline. These requirements facilitate thoughtful preparation by the individuals submitting the written materials to the Board, as well as by the Board members who will be deliberating and voting on the PFD, and ensure an orderly presentation of materials to the Board.

The proposed amendments to §213.23(f)(2) also do not alter the existing requirements of the rule as they apply to individuals wishing to make an oral presentation to the Board regarding a PFD. Rather, the proposed amendments clarify the applicability of the existing requirements. First, under the proposed amendments, as well as the existing rule, all individuals wishing to make an oral presentation to the Board regarding a PFD must file written materials with the Board. However, the timelines for submitting the written materials differ depending upon whether a modification is being proposed to the PFD. For those PFDs where a modification is not being recommended, the proposed amendments to §213.23(f)(2) clarify that the individual must submit his/her written materials to the Board no later than 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. For those PFDs where a modification to the PFD is being recommended, proposed amended §213.23(f)(2) clarifies that the individual must submit his/her written materials to the Board no later than ten days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. These timelines are necessary to ensure that the Board members have enough time to review the written materials prior to the Board’s deliberation on the matter and to facilitate thoughtful preparation by the individual submitting the written material to the Board, as well as the Board members who will be deliberating and voting on the PFD. Proposed amended §213.23(f)(2) also reiterates that an individual will not be permitted to make an oral presentation to the Board if the individual does not timely submit his/her written materials to the Board in compliance with the rule’s requirements. This requirement ensures an orderly presentation of materials to the Board.

Proposed New Requirements

The proposed amendments to §213.23(b) and (c) include two new requirements related to contested case proceedings at SOAH. First, proposed amended §213.23(b) provides any party to a contested case proceeding the opportunity, prior to the issuance of a PFD, to submit proposed findings of fact and conclusions of law to the administrative law judge (ALJ). The proposed amendments further require the judge to issue a ruling on each of the submitted proposed findings of fact and conclusions of law and, in the event the judge declines to adopt a particular finding of fact or conclusion of law, to explain why he/she declined to adopt the finding or conclusion. Proposed amended §213.23(c) limits the PFD to findings of fact and conclusions of law and prohibits the inclusion of recommendations for sanction in the PFD. These amendments are intended to assist the Board in its deliberation on PFDs and to properly delineate the roles of the Board and ALJs in contested case matters.

The Board’s mission is to protect and promote the welfare of the people of Texas by ensuring that each individual holding a nursing license is competent to practice safely. In accordance with the Nursing Practice Act (NPA), particularly §301.452, the Board is responsible for establishing, interpreting, and enforcing policy and standards of practice for the nursing profession in the State of Texas. The proposed amendments to §213.23(b) seek to establish a party’s right to submit proposed findings of fact and conclusions of law during the contested case process and to have those specific submissions discussed in the PFD. Because the Board alone is vested with the ultimate decision making authority in contested case matters, it is important that the Board receive all of the relevant information in a contested case matter prior to its deliberation and final decision on the PFD. Further, because the Board does not participate in the administrative hearing process, the Board relies heavily upon the information contained in the PFD to guide its final decision. A single ALJ, often without any agency expertise, may omit or ignore appropriate analysis or explanation from the PFD that would be relevant and/or significant to the Board during its deliberation. The proposed amendments, therefore, are designed to ensure that all relevant information from the contested case hearing, including an ALJ’s explanation and analysis of proposed findings of fact and conclusions of law, are included within the context of the PFD. Requiring the inclusion of this additional information should better assist the Board during its deliberation and decision making process. Further, proposed amended §213.23(b) is consistent with the provisions of the Government Code §2001.141(d), which requires findings of fact set forth in statutory language to be accompanied by a concise and explicit statement of the underlying facts supporting the findings and §2001.141(e), which recognizes an agency’s right to submit proposed findings of fact to the ALJ and receive a ruling on those proposed findings, provided the proposed findings are submitted under agency rule.

During the 82nd Legislative Session, Governor Perry commented on the proper roles of agencies and ALJs in contested case matters. Regarding the veto of Senate Bill 191, a bill which would have prohibited the Texas Medical Board from modifying an ALJ’s findings of fact or conclusions of law, but would have prohibited the ALJ from recommending a sanction in a contested case matter, Governor Perry stated:

“I am vetoing Senate Bill 191 because I have serious concerns regarding over reliance on the State Office of Administrative Hearings (SOAH) in the disposition of contested case hearings at the Texas Medical Board. This provision is also included in House Bill 680. The Board is charged with regulating the practice of medicine in Texas by, among other things, enforcing physicians’ standards of conduct and imposing appropriate sanctions when those standards are violated. When the Board is unable to resolve a case, it is referred to an administrative law judge (ALJ) at SOAH. Senate Bill 191 requires the Board to accept an ALJ’s findings of fact on whether a physician has committed a violation. This provision weakens the Board’s authority to oversee physicians, and vests that authority instead in the ALJ. This bill treats the Texas Medical Board differently from every other occupational licensing agency by mandating that the Board accept the ALJ’s findings. The responsibility for deciding whether a physician has violated a standard of conduct should belong to the multi member Board, and not to a single ALJ. ALJs serve the important role of providing an independent forum for conducting adjudicative hearings to determine the facts, but their role is to assist agencies in reaching a proper decision, not to supplant them or relieve them of that duty.”

The Board agrees with the concerns of the Governor. As such, the Board is proposing amendments to §213.23(c) to preserve the Board’s authority to enforce its standards of conduct and to impose appropriate sanctions when those standards are violated.

Under the Government Code §2003.021(a), SOAH is authorized to perform adjudicative functions in a contested case matter that are separate from the investigative, prosecutorial, and policymaking functions of the Board. Consistent with this statutory delineation, the proposed amendments to §213.23(c) properly reflect the appropriate role and responsibilities of the Board and SOAH in contested case matters. Although the Board has gone to considerable effort to develop rules and written policies that express the Board’s application and interpretation of its standards, individual ALJ opinions have repeatedly resulted in inconsistent and/or incorrect application of the Board’s written disciplinary sanction policies and rules. The proposed amendments to §213.23(c) are intended to preserve the Board’s ability to properly interpret and apply its standards and disciplinary sanction policies and rules in contested case matters and to guard against inconsistent and inappropriate application of those standards, policies, and rules. Further, the proposed amendments are consistent with the law and policy in this state regarding the imposition of sanctions in contested case matters. It is well settled that agencies, and not ALJs, retain the ultimate authority to impose appropriate sanctions in contested case matters. (See Texas State Board of Dental Examiners vs. Brown, 281 S.W. 3d 692 (Tex. App. – Corpus Christi 2009, pet. filed); Sears vs. Tex. State Bd. of Dental Exam’rs, 759 S.W.2d 748, 751 (Tex.App. – Austin 1988, no pet); Firemen’s & Policemen’s Civil Serv. Comm’n vs. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984); Granek vs. Tex. State Bd. of Med. Exam’rs, 172 S.W.3d 761, 781 (Tex.App. – Austin 2005, pet. denied); Fay-Ray Corp. vs. Tex. Alcoholic Beverage Comm’n, 959 S.W.2d 362, 369 (Tex.App. – Austin 1998, no pet.) The proposed amendments re-iterate this standard in Board rule.

Remaining Amendments

The proposed amendment to §213.23(d) eliminates potentially redundant and unnecessary wording from the subsection and, instead, includes reference to the regulations adopted by SOAH, which control the submission to ALJs of written exceptions and replies to exceptions in contested case matters. The remaining proposed amendments to §213.23(e) and (g) – (m) are necessary to clarify existing language within the section and to re-letter the section correctly.

Section-by-Section Overview. Proposed amended §213.23(b) states that, prior to the issuance of a PFD, a party may submit proposed findings of fact and conclusions of law to the judge. Further, the judge shall issue a ruling on each proposed finding of fact and conclusion of law and shall set forth the specific reason for not adopting a particular proposed finding of fact or conclusion of law.

Proposed amended §213.23(c) states that a PFD shall include proposed findings of fact and conclusions of law, but shall not include a judge’s recommendation for sanction.

Proposed amended §213.23(d) states that any party of record who is adversely affected by the PFD of the judge shall have the opportunity to file with the judge exceptions to the PFD and replies to exceptions to the PFD in accordance with 1 TAC §155.507. Further, the PFD may be amended by the judge in accordance with 1 TAC §155.507 without again being served on the parties.

Proposed amended §213.23(e) states that the PFD may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with §213.12, after the expiration of 10 days after the filing of replies to exceptions to the PFD or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

Proposed amended §213.23(f)(1) provides that, following the issuance of a PFD, parties shall have an opportunity to file written exceptions and/or briefs with the Board concerning a PFD. Further, an opportunity shall be given to file a response to written exceptions and/or briefs. For individuals who wish to file written exceptions and/or briefs with the Board, but do not wish to make an oral presentation to the Board, the individual’s written exceptions and/or briefs must be submitted to the Board no later than 10 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. If written exceptions and/or briefs are submitted to the Board in violation of this requirement, the Board will not consider the written materials.

Pursuant to §213.23(f)(2), if an individual wishes to make an oral presentation to the Board regarding a PFD, and no modification is proposed to the PFD, the individual must file written exceptions and/or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. If an individual wishes to make an oral presentation to the Board regarding a PFD and a modification is proposed to the PFD, the individual must file a written response to the proposed modification, written exceptions, and/or briefs with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the PFD. An individual will not be permitted to make an oral presentation to the Board if the individual does not comply with these requirements.

Proposed amended §213.23(g) states that it is the policy of the Board to change a finding of fact or conclusion of law in a PFD or to vacate or modify the proposed order of a judge when, the Board determines: (i) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions; (ii) that a prior administrative decision on which the judge relied is incorrect or should be changed; or (iii) that a technical error in a finding of fact should be changed.

Proposed amended §213.23(h) states that, if the Board modifies, amends, or changes the recommended PFD or order of the judge, an order shall be prepared reflecting the Board’s changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to §213.23(g).

Proposed amended §213.23(i) provides that an order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.

Proposed amended §213.23(j) states that a copy of the order shall be mailed to all parties and to the party’s last known employer as a nurse.

Proposed amended §213.23(k) provides that the decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where: (i) the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and (ii) the order states it is final and effective on the date rendered.

Proposed amended §213.23(l) states that a motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in §213.23(k).

Proposed amended §213.23(m) states that motions for rehearing under §213.23 are controlled by the Government Code §2001.145.

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, the anticipated public benefits will be the adoption of requirements that: (i) promote fair and efficient regulation; (ii) facilitate fully informed Board decisions; and (iii) preserve the Board’s authority to interpret and apply its standards and disciplinary policies and rules in a manner that is consistent with its mission to protect and promote the welfare of the people of Texas.

Under the Board’s existing rule, individuals are afforded an opportunity to submit written materials, including briefs and exceptions, to the Board prior to its deliberation and final decision on a PFD. Individuals are also permitted to make oral presentations to the Board prior to its deliberation and final decision on a PFD. The rule also requires individuals to meet certain requirements, such as timely submitting the written materials to the Board. The proposal does not dramatically alter the current rule’s requirements in this regard. Rather, the proposed amendments clarify the language of the existing rule. The proposed amendments promote fairness and openness in the Board’s deliberative process and ensure the Board adequate time to consider relevant legal arguments and objections concerning a PFD prior to its deliberation and final decision in open forum, which promotes well reasoned and error-free agency decisions. Further, the proposal clarifies that individuals must meet the rule’s requirements or the individual will not be permitted to make an oral presentation to the Board and the Board will not consider any information that is provided outside of the rule’s prescribed timelines. This requirement ensures the orderly presentation of materials to the Board, which effectuates efficient Board regulation.

The proposal is also intended to facilitate more fully informed Board deliberation and decisions by requiring additional information to be included in PFDs. Under the proposal, parties to a contested case hearing are permitted to submit proposed findings of fact and conclusions of law to the ALJ prior to the issuance of the PFD. Once submitted, the ALJ is required to rule on each proposed finding of fact and conclusions of law. This proposed requirement is designed to elicit additional ALJ discussion and analysis of the case so that the Board can better determine the particular importance of the information in the PFD.

Finally, the proposal properly delineates the roles of the Board and SOAH in contested case matters. The proposal clarifies that a PFD should contain proposed findings of fact and conclusions of law, but not recommendations for sanctions. This proposed requirement is consistent with applicable law, which reserves the imposition of disciplinary sanctions in contested case matters to state agencies, and not ALJs. The Board is charged with protecting the public from the unsafe, illegal, and incompetent practice of its licensees. In an effort to meet this responsibility, the Board has adopted written disciplinary policies and rules designed to protect the public from such conduct. When an individual breaches these standards, the Board alone retains the responsibility for determining and imposing a disciplinary sanction that is likely to minimize and/or eliminate future risk of harm to the public. The proposed amendments are designed to ensure that the Board’s disciplinary policies and rules are applied appropriately and consistently in each case and in a manner that seeks to protect the public from recidivist conduct.

There are no anticipated economic costs associated with proposed amended §213.23(d) – (m). The proposed amendments to these subsections clarify the existing requirements of the rule, and none of the proposed amendments to these subsections impose new or additional requirements or restrictions that are anticipated to result in any new economic costs to individuals who comply with the requirements. Further, because the proposed amendments are so similar in nature to the existing requirements of these subsections, the Board does not anticipate that any individual’s method of compliance will be altered due to the proposal. Likewise, the Board does not anticipate that any individual will experience any new or additional associated costs of compliance as a result of the proposed amendments to these subsections.

Proposed amended §213.23(b) and (c) include two new requirements. However, the Board anticipates that any cost of compliance associated with these new requirements will be minimal. First, proposed amended §213.23(b) provides parties to a contested case proceeding the opportunity to file proposed findings of fact and conclusions of law with the ALJ. No party, however, is required to submit proposed findings of fact and conclusions of law to the ALJ under the proposal. For those individuals who choose to do so, the Board anticipates that the costs of compliance will result from preparing the written materials and submitting them to the ALJ. The estimated compliance costs associated with preparing proposed findings of fact and conclusions of law will vary among individuals, depending upon a number of factors, including the length and complexity of the written material prepared by the individual and whether the individual chooses to retain an attorney to prepare the written material. Proposed amended §213.23(b) does not prescribe the specific content or the specific format of the written material that must be submitted to the ALJ. As such, each individual is free to choose the most efficient and economical manner of preparing the written material. Further, the proposed amendments do not require an individual to utilize an attorney to prepare the written material submitted to the ALJ. For those individuals who choose to utilize the services of an attorney, the associated economic costs will vary substantially among individual attorneys, depending upon a number of factors, including the complexity and length of the contested case proceeding. However, each individual is free to choose the most economic method of preparing the written material for the ALJ. The proposed amendments also do not prescribe the specific delivery method that an individual must utilize when submitting his or her written materials to the ALJ. Currently, SOAH permits written materials to be submitted via regular U.S. mail, fax, e-filing, or by hand delivery, including the use of a private carrier, such as UPS or FEDEX. Each individual is free to choose the most efficient and economical manner of submitting the written materials to the ALJ. Further, each individual has the information necessary to estimate his or her own compliance costs with proposed amended §213.23(b) and (c). Any other costs to comply with the proposed amendments result from the enactment of the Occupations Code Chapter 301 and the Government Code Chapter 2001 and are not a result of the adoption, enforcement, or administration of 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 no individual, Board regulated entity, or other entity required to comply with the proposal meets the definition of a small or micro business under the Government Code §2006.001(1) or §2006.001(2).

The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business.

The only entities subject to or affected by the proposal are individual licensees or applicants and ALJs. Neither individual licensees, applicants, or ALJs qualify as small or micro businesses under the Government Code §2006.001(1) or (2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.

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 18, 2012, 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 §§301.151, 301.452, and 301.459(a) and the Government Code §§2001.004, 2001.058, 2001.062, 2001.141, and 2003.021(a).

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 301.452(a) defines intemperate use as including 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 Chapter 301, 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) states 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) states 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 301.459(a) requires the Board, by rule, to adopt procedures under the Government Code Chapter 2001 governing formal disposition of a contested case.

Section 2001.004 states that, in addition to other requirements under law, a state agency shall: (1) adopt rules of practice stating the nature and requirements of all available formal and informal procedures; (2) index, cross-index to statute, and make available for public inspection all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions; and (3) index, cross-index to statute, and make available for public inspection all final orders, decisions, and opinions.

Section 2001.058(a) states that the section applies only to an ALJ employed by SOAH.

Section 2001.058(b) states that an ALJ who conducts a contested case hearing shall consider applicable agency rules or policies in conducting the hearing, but the state agency deciding the case may not supervise the ALJ.

Section 2001.058(c) provides that a state agency shall provide the ALJ with a written statement of applicable rules or policies.

Section 2001.058(d) states that a state agency may not attempt to influence the finding of facts or the ALJ’s application of the law in a contested case except by proper evidence and legal argument.

Section 2001.058(e) provides that a state agency may change a finding of fact or conclusion of law made by the ALJ, or may vacate or modify an order issued by the ALJ, only if the agency determines: (i) that the ALJ did not properly apply or interpret applicable law, agency rules, written policies provided under §2001.058(c), or prior administrative decisions; (ii) that a prior administrative decision on which the ALJ relied is incorrect or should be changed; or (iii) that a technical error in a finding of fact should be changed. Further, the agency shall state in writing the specific reason and legal basis for a change made under §2001.058(e).

Section 2001.058(f) states that a state agency by rule may provide that, in a contested case before the agency that concerns licensing in relation to an occupational license and that is not disposed of by stipulation, agreed settlement, or consent order, the ALJ shall render the final decision in the contested case. If a state agency adopts such a rule, the following provisions apply to contested cases covered by the rule: (i) the ALJ shall render the decision that may become final under §2001.144 not later than the 60th day after the latter of the date on which the hearing is finally closed or the date by which the judge has ordered all briefs, reply briefs, and other posthearing documents to be filed, and the 60-day period may be extended only with the consent of all parties, including the occupational licensing agency; (ii) the ALJ shall include in the findings of fact and conclusions of law a determination whether the license at issue is primarily a license to engage in an occupation; (iii) SOAH is the state agency with which a motion for rehearing or a reply to a motion for rehearing is filed under §2001.146 and is the state agency that acts on the motion or extends a time period under §2001.146; (iv) SOAH is the state agency responsible for sending a copy of the decision that may become final under §2001.144 or an order ruling on a motion for rehearing to the parties, including the occupational licensing agency, in accordance with Section 2001.142; and (v) the occupational licensing agency and any other party to the contested case is entitled to obtain judicial review of the final decision in accordance with Chapter 2001.

Section 2001.062(a) provides that, in a contested case, if a majority of the state agency officials who are to render a final decision have not heard the case or read the record, the decision, if adverse to a party other than the agency itself, may not be made until: (1) a PFD is served on each party; and (2) an opportunity is given to each adversely affected party to file exceptions and present briefs to the officials who are to render the decision.

Section 2001.062(b) states that, if a party files exceptions or presents briefs, an opportunity shall be given to each other party to file replies to the exceptions or briefs.

Section 2001.141(a) states that decision or order that may become final under §2001.144 that is adverse to a party in a contested case must be in writing or stated in the record.

Section 2001.141(b) provides that a decision that may become final under §2001.144 must include findings of fact and conclusions of law, separately stated.

Section 2001.141(c) states that findings of fact may be based only on the evidence and on matters that are officially noticed.

Section 2001.141(d) states that findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

Section 2001.141(e) states that, if a party submits under a state agency rule proposed findings of fact, the decision shall include a ruling on each proposed finding.

Section 2003.021(a) provides that the SOAH is a state agency created to serve as an independent forum for the conduct of adjudicative hearings in the executive branch of state government. The purpose of the office is to separate the adjudicative function from the investigative, prosecutorial, and policymaking functions in the executive branch in relation to hearings that the office is authorized to conduct.

Cross Reference to Statute. The following statutes are affected by this proposal: Occupations Code §§301.151, 301.452, and 301.459(a); Government Code §§2001.004, 2001.058, 2001.062, 2001.141, and 2003.021(a).

Current Rule:

(a) Except as to those matters expressly delegated to the executive director for ratification, either the Board or the Eligibility and Disciplinary Committee, may make final decisions in all matters relating to the granting or denial of a license or permit, discipline, temporary suspension, or administrative and civil penalties.

(b) Any party of record who is adversely affected by the proposal for decision of the judge shall have the opportunity to file exceptions and a brief to the proposal for decision within 15 days after the date of service of the proposal for decision. A reply to the exceptions may be filed by the other party within 15 days of the filing of the exceptions. Exceptions and replies shall be filed with the judge with copies served on the opposing party. The proposal for decision may be amended by the judge pursuant to the exceptions, replies, or briefs submitted by the parties without again being served on the parties.

(c) The proposal for decision may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with this section, after the expiration of 10 days after the filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

(d) Parties shall have an opportunity to file written exceptions and briefs with the Board concerning a proposal for decision. An opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposal for decision unless the Respondent has first filed written exceptions or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. A Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a proposal for decision unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the proposal for decision.

(e) It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when, the Board determines:

(1) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

(2) that a prior administrative decision on which the judge relied is incorrect or should be changed; or

(3) that a technical error in a finding of fact should be changed.

(f) If the Board modifies, amends, or changes the recommended order of the judge, an order shall be prepared reflecting the Board’s changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection (e) of this section.

(g) An order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.

(h) A copy of the order shall be mailed to all parties and to the party’s last known employer as a nurse.

(i) The decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where:

(1) the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and

(2) the order states it is final and effective on the date rendered.

(j) A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection (i) of this section.

(k) Motions for rehearing are controlled by Texas Government Code §2001.145.

Proposed Rule Changes:

(a)(No change.)

(b)Prior to the issuance of a proposal for decision, a party may submit proposed findings of fact and conclusions of law to the judge. The judge shall issue a ruling on each proposed finding of fact and conclusion of law and shall set forth the specific reason for not adopting a particular proposed finding of fact or conclusion of law.

(c)A proposal for decision shall include proposed findings of fact and conclusions of law, but shall not include a judge’s recommendation for sanction.

(d)[(b)] Any party of record who is adversely affected by the proposal for decision of the judge shall have the opportunity to file with the judge exceptions to the proposal for decision and replies to exceptions to the proposal for decision in accordance with 1 TAC §155.507 [ a brief to the proposal for decision within 15 days after the date of service of the proposal for decision. A reply to the exceptions may be filed by the other party within 15 days of the filing of the exceptions. Exceptions and replies shall be filed with the judge with copies served on the opposing party]. The proposal for decision may be amended by the judge in accordance with 1 TAC §155.507 [ pursuant to the exceptions, replies, or briefs submitted by the parties] without again being served on the parties.

(e)[(c)] The proposal for decision may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with this section, after the expiration of 10 days after the filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

(f)Following the issuance of a proposal for decision, parties shall have an opportunity to file written exceptions and/or briefs with the Board concerning a proposal for decision. An opportunity shall be given to file a response to written exceptions and/or briefs. The following requirements govern the submission of written exceptions and/or briefs to the Board:

(1)Individuals wishing to file written exceptions and/or briefs with the Board, but not wishing to make an oral presentation to the Board concerning a proposal for decision. A Respondent wishing to file written exceptions and/or briefs with the Board concerning a proposal for decision must do so no later than 10 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. The Board will not consider any written exceptions and/or briefs submitted in violation of this requirement.

(2)Individuals wishing to make an oral presentation to the Board concerning a proposal for decision. An individual wishing to make an oral presentation to the Board must file written exceptions and/or briefs with the Board. If no modification is proposed to the proposal for decision, an individual must file written exceptions and/or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. If a modification is proposed to the proposal for decision, an individual must file a written response to the proposed modification, written exceptions, and/or briefs with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. An individual will not be permitted to make an oral presentation to the Board if the individual does not comply with these requirements. [(d)Parties shall have an opportunity to file written exceptions and briefs with the Board concerning a proposal for decision. An opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposal for decision unless the Respondent has first filed written exceptions or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the proposal for decision. A Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a proposal for decision unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the proposal for decision.]

(g)[(e)] It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when, the Board determines:

(1)that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

(2)that a prior administrative decision on which the judge relied is incorrect or should be changed; or

(3)that a technical error in a finding of fact should be changed.

(h)[(f)] If the Board modifies, amends, or changes the recommended proposal for decision or order of the judge, an order shall be prepared reflecting the Board’s changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection(g) [ (e)] of this section.

(i)[(g)] An order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.

(j)[(h)] A copy of the order shall be mailed to all parties and to the party’s last known employer as a nurse.

(k)[(i)] The decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where:

(1)the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and

(2)the order states it is final and effective on the date rendered.

(l)[(j)] A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection(k) [ (i)] of this section.

(m)[(k)] Motions for rehearing under this section are controlled by Texas Government Code §2001.145.

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 4, 2012

TRD-201202281

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