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TITLE 25HEALTH SERVICES
PART 1DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 146TRAINING AND REGULATION OF PROMOTORES OR COMMUNITY HEALTH WORKERS
RULE §146.8Violations, Complaints and Subsequent Actions

(a) This section establishes standards relating to:

  (1) offenses or criminal convictions;

  (2) violations which result in disciplinary actions;

  (3) procedures for filing complaints alleging violations and prohibited actions under the Health and Safety Code, Chapter 48, or this chapter; and

  (4) the department's investigation of complaints.

(b) Criminal convictions which directly relate to the profession as an instructor, promotor(a) or community health worker.

  (1) The department may suspend or revoke any existing certificate, or disqualify a person from receiving any certificate because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of an instructor, promotor(a) or community health worker.

  (2) In considering whether a criminal conviction directly relates to the occupation of an instructor, promotor(a) or community health worker, the department shall consider:

    (A) the nature and seriousness of the crime;

    (B) the relationship of the crime to the purposes for certification as an instructor, promotor(a) or community health worker. The following felonies and misdemeanors relate to any certificate of an instructor, promotor(a) or community health worker because these criminal offenses indicate an inability or a tendency to be unable to perform as an instructor, promotor(a) or community health worker:

      (i) any misdemeanor and/or felony offense involving moral turpitude by statute or common law; and

      (ii) a misdemeanor or felony offense under various titles of the Penal Code:

        (I) offenses against the person (Title 5);

        (II) offenses against property (Title 7);

        (III) offenses against public order and decency (Title 9);

        (IV) offenses against public health, safety, and morals (Title 10); and

        (V) offenses of attempting or conspiring to commit any of the offenses in this subsection (Title 4);

    (C) the extent to which any certificate might offer an opportunity to engage in further criminal history activity of the same type as that in which the person previously has been involved;

    (D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibility of an instructor, promotor(a) or community health worker. In making this determination, the department will apply the criteria outlined in Occupations Code, Chapter 53, the legal authority for the provisions of this section; and

    (E) the length of time since the date of the crime.

  (3) The misdemeanors and felonies listed in paragraph (2)(B)(i) - (ii) of this subsection are not inclusive in that the department may consider other particular crimes in special cases in order to promote the intent of the Health and Safety Code, Chapter 48, and this chapter.

(c) Types of violations:

  (1) a person intentionally or knowingly represents oneself as a certified instructor, promotor(a) or community health worker without a certificate issued under the Health and Safety Code, Chapter 48;

  (2) a person obtains or attempts to obtain a certificate issued under the Health and Safety Code, Chapter 48, by bribery or fraud;

  (3) a person engages in unprofessional conduct, including the violation of the standards of practice for instructors, promotores or community health workers as established by the department;

  (4) a person fails to report to the department the violation of the Health and Safety Code, Chapter 48, or any allegations of sexual misconduct by another person;

  (5) a person violates a provision of the Health and Safety Code, Chapter 48, or this chapter, an order of the department previously entered in a disciplinary proceeding, or an order to comply with a subpoena issued by the department; or

  (6) a person has a certificate revoked, suspended or otherwise subjected to adverse action or being denied a certificate by another certification authority in another state, territory or country.

(d) Procedures for revoking, suspending, or denying a certificate to persons with criminal backgrounds.

  (1) The department shall give written notice to the person that the department intends to deny, suspend, or revoke the certificate after a hearing in accordance with the provisions of Chapter 1, Subchapter C of this title (relating to Fair Hearing Procedures).

  (2) If the department denies, suspends, or revokes a certificate under these sections after hearing, the department shall give the person written notice of the reasons for the decision.

(e) Filing of complaints.

  (1) Anyone may complain to the department alleging that a person has committed an offense or action prohibited under the Health and Safety Code, Chapter 48, or that a certificate holder has violated the Health and Safety Code, Chapter 48, or this chapter.

  (2) A person wishing to complain about an offense, prohibited action, or alleged violation against an instructor, promotor(a) or community health worker or other person shall notify the department. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the department. The department's mailing address is Office of Title V and Family Health, Promotor(a)/Community Health Worker Training and Certification Program, Mail Code 1922, P.O. Box 149347, Austin, Texas 78714-9347, physical address is 1100 West 49th Street, Austin, Texas 78756-3183, and telephone (512) 776-7373.

  (3) Upon receipt of a complaint the department or the department's designee shall send an acknowledgment letter to the complainant and the department's complaint form which the complainant must complete and return to the department or the department's designee before action can be taken. If the complaint is made by a visit to the department, the form may be given to the complainant at that time; however, it must be completed and returned to the department or the department's designee before further action may be taken. Copies of the complaint form may be obtained from the department.

  (4) Anonymous complaints shall be investigated by the department, provided sufficient information is submitted.

(f) Investigation of complaints. The department is responsible for investigating complaints.

(g) The department's action.

  (1) The department shall take one or more actions described in this section.

  (2) The department may determine that an allegation is groundless and dismiss the complaint.

  (3) The department may determine that an instructor, promotor(a) or community health worker has violated the Health and Safety Code, Chapter 48, or this chapter and may institute disciplinary action in accordance with subsection (h) of this section.

  (4) Whenever the department dismisses a complaint or closes a complaint file, the department shall give a summary report of the final action to the advisory committee, the complainant, and the accused party.

(h) Disciplinary actions. The department may take action under this section as follows.

  (1) The department may reprimand an instructor, promotor(a) or community health worker or initiate action to deny, suspend, not renew, or revoke a certificate.

  (2) The department may take disciplinary action if it determines that a person who holds a certificate is in violation of §146.7 of this title (relating to Professional and Ethical Standards).

  (3) The department shall take into consideration the following factors in determining the appropriate action to be imposed in each case:

    (A) the severity of the offense;

    (B) the danger to the public;

    (C) the number of repetitions of offenses;

    (D) the length of time since the date of the violation;

    (E) the number and type of previous disciplinary cases filed against the instructor, promotor(a) or community health worker;

    (F) the length of time the instructor, promotor(a) or community health worker has performed community health work services or training;

    (G) the actual damage, physical or otherwise, to the patient, if applicable;

    (H) the deterrent effect of the penalty imposed;

    (I) the effect of the penalty upon the livelihood of the instructor, promotor(a) or community health worker;

    (J) any efforts for rehabilitation; and

    (K) any other mitigating or aggravating circumstances.

  (4) The department may take action for violation of the Health and Safety Code, Chapter 48, or this chapter, an order of the department previously entered in a disciplinary proceeding, or an order to comply with a subpoena issued by the department.

(i) Fair hearing.

  (1) The fair hearing shall be conducted according to the Chapter 1, Subchapter C of this title.

  (2) Prior to making a final decision adverse to a certificate holder, the department shall give the certificate holder written notice of an opportunity for a hearing on the proposed action.

  (3) The certificate holder has 20 days after receiving the notice to request a hearing on the proposed action. A request for a hearing shall be made in writing and mailed or hand-delivered to the department, unless the notice letter specifies an alternative method. If a person who is offered the opportunity for a hearing does not request a hearing within the prescribed time for making such a request, the person is deemed to have waived the hearing and the action may be taken.

(j) Final action.

  (1) If the department suspends a certificate, the suspension remains in effect until the department determines that the reasons for suspension no longer exist. The instructor, promotor(a) or community health worker whose certificate has been suspended is responsible for securing and providing to the department such evidence, as may be required by the department that the reasons for the suspension no longer exist. The department shall investigate prior to making a determination.

  (2) During the time of suspension, the former certificate holder shall return the certificate and identification card(s) to the department.

  (3) If a suspension overlaps a certificate renewal period, the former certificate holder shall comply with the normal renewal procedures in these sections; however, the department may not renew the certificate until the department determines that the reasons for suspension have been removed.

  (4) A person whose application is denied or certificate is revoked, as a result of disciplinary action is ineligible for a certificate under Health and Safety Code, Chapter 48, for one year from the date of the denial or revocation or surrender.

  (5) Upon revocation or nonrenewal, the former certificate holder shall return the certificate and any identification card(s) to the department.


Source Note: The provisions of this §146.8 adopted to be effective June 24, 2015, 40 TexReg 3828

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