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RULE §140.426Disciplinary Actions

(a) The provisions of this section shall apply to all types of licensees under this subchapter, notwithstanding the provisions of §442.103 of this title (relating to Procedure for Contested Cases for Counselor and Facility Licenses), and shall not limit the authority of the department to take any other action against a license, registration, or certification, or the holder of, or applicant for, a license, registration, or certification, under §140.431 of this title (relating to Criminal History Standards), or as otherwise authorized by applicable statute or rule.

(b) The department may take action as authorized under subsection (c) of this section if an applicant for, or holder of, a license, registration, or certification issued under this subchapter:

  (1) violates or assists another to violate the Act, a rule under this subchapter, or an Order issued under the Act or this subchapter's rules;

  (2) circumvents or attempts to circumvent the Act or a rule under this subchapter;

  (3) directly or indirectly participates in a plan to evade the Act or a rule under this subchapter;

  (4) has a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the department determines would constitute a violation of the Act or a rule under this subchapter;

  (5) engages in false, misleading, or deceptive conduct as defined by Business and Commerce Code, §17.46;

  (6) engages in conduct that discredits or tends to discredit the profession of chemical dependency counseling;

  (7) directly or indirectly reveals a confidential communication made to the person by a client or recipient of services, except as required or permitted by law;

  (8) refuses to perform an act or service the person is licensed to perform under this subchapter on the basis of the client's or recipient's age, sex, race, religion, national origin, color, or political affiliation; or

  (9) commits an act for which liability exists under Civil Practice and Remedies Code, Chapter 81 (Relating to Sexual Exploitation By Mental Health Services Provider).

(c) Where grounds exist to take action against a person, against a license, certification, or registration issued under this subchapter, or against an applicant or holder of a license, certification, or registration issued under this subchapter, the department may:

  (1) deny, refuse to issue, or refuse to renew a license, certification, or registration;

  (2) revoke or suspend a license, certification, or registration;

  (3) probate a suspension of a license, certification, or registration;

  (4) impose an administrative penalty against a person who violates the Act or a rule under this subchapter; or

  (5) issue a reprimand against the applicable license holder.

(d) The department will determine the length of the probation or suspension. If the department probates the suspension of a license, certification, or registration, the department may require the holder of the applicable license to:

  (1) report regularly to the department on matters that are the basis of the probation;

  (2) limit practice to the areas prescribed by the department; or

  (3) complete additional educational requirements, as required by the department to address the areas of concern that are the basis of the probation.

(e) An individual whose license, registration, or certification is revoked under this subchapter is not eligible to apply for a license, registration, or certification under this subchapter for a minimum of two years after the date of revocation. The department may consider the findings that resulted in revocation and any other relevant facts in determining whether to deny the application under this section, or as otherwise permitted by law, if an otherwise complete and sufficient application for a license, registration, or certification is submitted after two years have elapsed since revocation.

(f) A voluntary surrender accepted by the department in response to a complaint under §140.429 of this title (relating to Voluntary Surrender of License, Certification, or Registration In Response to a Complaint) shall be deemed to be the result of a formal disciplinary action as provided for in that section.

(g) The department, upon determination that grounds may exist to take disciplinary action, shall issue a notice of violation notifying the respondent of the proposed action.

  (1) The notice letter shall be sent via regular first-class and certified mail to the respondent's address of record.

  (2) The notice shall specify:

    (A) the statutes, rules, or orders allegedly violated;

    (B) the factual basis of the alleged violations;

    (C) the disciplinary action the department intends to take; and

    (D) notice of an opportunity for a hearing to be held under the Administrative Procedure Act, Texas Government Code, Chapter 2001.

  (3) If the department is proposing to assess an administrative penalty, the letter shall also inform the respondent of the amount of the proposed penalty and of the opportunity for a hearing on the occurrence of the violation, the amount of the penalty, or both.

  (4) The letter shall also include the following notices:

    (A) If the respondent does not request a hearing on or before the 20th day after notice is effective, the allegations will be deemed true and the department will issue a default final order implementing the proposed action.

    (B) Notice is effective three days after the date of mailing.

(h) A respondent must submit a timely written request for a hearing to avoid having the allegations in the notice letter deemed true and a default order implementing the proposed action issued by the department. The request for hearing is timely if filed with the department or postmarked on or before the 20th day after the notice is effective. If the respondent fails to timely file a request for a hearing, the factual allegations of the notice letter may be deemed true and shall form the basis of a default final order by the department making findings of fact and conclusions of law consistent with the notice of violation, and implementing the proposed action.

(i) The department shall implement a final order to suspend a license issued under this subchapter for failure to pay child support as provided by the Texas Family Code, Chapter 232.

Source Note: The provisions of this §140.426 adopted to be effective August 9, 2012, 37 TexReg 5788

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