The Texas Board of Nursing (Board) proposes amendments to §§216.1 - 216.11, relating to Continuing Competency. The amendments are being proposed under the authority of the Occupations Code §301.151 and are consistent with the statutory directives in the Occupations Code Chapter §301.303 and §301.307 for continuing competency programs.

Background

At its April 2018 meeting, the Board charged the Nursing Practice Advisory Committee (Committee) with reviewing Chapter 216 and making recommendations for changes. This charge stemmed from a request by the Texas Nurses Association (TNA) to allow additional topics to be credited as continuing nursing education (CNE) and, therefore, used for licensure renewal.

The Committee met on May 7, 2018, to address the Board's charge. The Committee considered two significant changes to the chapter. First, the Committee reviewed the activities that are currently accepted by the Board for CNE credit. Those activities include academic courses, program development and/or presentation, and authorship. The rule also clearly delineates the types of activities that are not appropriate for CNE credit. Those activities include basic life support or cardiopulmonary resuscitation courses, in-service programs, nursing refresher courses, orientation programs, economic courses for financial gain, liberal art courses, self-directed study, continuing medical education (unless meeting specified exceptions), and courses that focus on self-improvement, changes in attitude, self-therapy, and self-awareness.

In the past five to ten years, however, research has demonstrated that courses focusing on compassion fatigue, moral distress, fatigue, resilience, workplace violence, and nursing satisfaction have an impact on nursing practice, patient safety, and patient outcomes. The Committee reviewed examples of such evidence-based research, compiled by TNA, and then discussed the impact of the research on the Board's rule. Ultimately, the Committee determined that the Board should accept CNE courses that demonstrate a link between a nurse's attitude and self-awareness and nursing practice and patient outcomes.

The Committee also reviewed the requirements related to older adult and geriatric care. The current rule contains prescriptive language regarding the information that must be included in these CNE courses, including information relating to elder abuse, age related memory changes and disease processes, chronic conditions, and end of life issues. However, the prescriptive nature of the current rule has made it difficult for some nurses to find courses that meet this requirement. As such, the proposal removes the prescriptive requirement from the rule and instead, provides that a CNE course relating to older adult and geriatric populations may include topical information, to include information related to elder abuse, age-related memory changes and disease processes, chronic conditions, end of life issues, health maintenance, and health promotion. This proposed change is intended to make it easier for nurses to find courses that will meet the rule's requirements.

Finally, the proposal reorganizes portions of the chapter's requirements, corrects outdated references and grammatical errors, and includes conforming language for consistency with other Board rules.

The Board considered the proposed amendments, the Committee's recommendations, and Board Staff's recommendations at its regularly scheduled Board meeting held on July 19-20, 2019, and voted to publish the proposed amendments in the Texas Register for public comment.

How the Sections Will Function. Section 216.1 contains the definitions for the chapter. The majority of the proposed changes to this section are non-substantive in nature and clarify existing terms and correct grammatical errors. There are a few changes, however, that are more substantive in nature.

First, the current rule text defines a contact hour as sixty consecutive minutes of participation in a learning activity. However, the proposal modifies this definition to clarify that the number of contact hours will be determined by the Board recognized credentialing agency and/or provider offering the particular continuing education activity. This proposed change makes it easier for nurses to determine the length of a CNE activity. The proposal also adds a definition of licensing period, which should help clarify the length of time a nurse has to complete his/her CNE activities for licensure renewal. Finally, the proposal adds a definition of targeted continuing education. This definition distinguishes between CNE activities that are specifically required by legislative directive or Board rule and CNE activities that nurses are free to choose themselves. Overall, the proposed changes to this section are intended to clarify terms used throughout the rest of the chapter.

The proposed changes to §216.2 are non-substantive in nature and provide clarity to the existing rule text.

The majority of the proposed changes to §216.3 are non-substantive in nature and provide clarity to the existing rule text. One proposed change to §216.3, however, is more substantive in nature. The current rule requires nurses whose practice includes older adult or geriatric populations to complete at least two contact hours of CNE relating to older adult or geriatric populations or maintain certification in an area of practice relating to older adult of geriatric populations. However, the rule currently prescribes the type of information such CNE must include, making it difficult for some nurses to find courses that meet the rule's requirements. Instead of including prescriptive requirements specifying the information that must be included in this CNE, the proposal provides examples of topics that would be appropriate to include in CNE related to older adult or geriatric care. The intended result it to alleviate the burden of locating CNE courses that include every topic enumerated in the rule, but instead to locate courses that include similar content.

The proposed changes to §216.4 are non-substantive in nature and provide clarity to the existing rule text.

The majority of the proposed changes to §216.5 are non-substantive in nature and provide clarity to the existing rule text. One proposed change is more substantive in nature, however. The proposal provides an explanation of how the completion of academic coursework will translate into contact hours for purposes of continuing competency requirements. Under the proposal, one academic quarter hour will equate to ten contact hours, and one academic semester hour will equate to fifteen contact hours. This proposed change clarifies the amount of credit a nurse will be given for completing academic coursework for purposes of continuing competency requirements and licensure renewal.

The majority of the proposed changes to §216.6 are non-substantive in nature and provide clarity to the existing rule text. One proposed change is more substantive in nature, however. The rule currently recognizes the completion of academic courses, program development and/or presentation, and authorship as alternative continuing education activities. The rule, however, also specifies the types of activities that are not credited as appropriate for CNE. Those activities include basic life support or cardiopulmonary resuscitation courses, in-service programs, nursing refresher courses, orientation programs, economic courses for financial gain, liberal art courses, self-directed study, continuing medical education (unless meeting specified exceptions), and courses that focus on self-improvement, changes in attitude, self-therapy, and self-awareness. Based upon research in the last five to ten years, the proposal recognizes that courses focusing on compassion fatigue, moral distress, fatigue, resilience, workplace violence, and nursing satisfaction have an impact on nursing practice, patient safety, and patient outcomes and may be appropriate for CNE credit. CNE courses that demonstrate a link between a nurse's attitude and self-awareness and nursing practice and patient outcomes will be considered as appropriate CNE activities under the proposal. This proposed change provides additional opportunities for nurses to complete continuing competency activities required for licensure renewal, making the overall process less burdensome for licensees.

The proposed changes to §216.7 are non-substantive in nature and provide clarity to the existing rule text.

The proposed changes to §216.8 are non-substantive in nature and provide clarity to the existing rule text, particularly when describing the circumstances in which a licensee may be exempt from the completion of continuing competency requirements. The proposal clearly specifies that a nurse may be exempt from completing general continuing competency requirements for renewal, but may still be required to complete certain targeted continuing competency requirements pursuant to legislative directive or Board rule. The proposed amendments do not alter the existing requirements for nurses, but do clarify their responsibilities under the chapter.

The proposed changes to §§216.9, 216.10, and 216.11 are non-substantive in nature and provide clarity to the existing rule text.

Overall, the proposed amendments provide additional opportunities for nurses to meet their continuing competency obligations, allowing for more flexibility and innovation.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no anticipated change in the revenue to state government as a result of the enforcement or administration of 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 benefit will be the adoption of a rule that complies with the statutory mandates of the Occupations Code §301.303 and provides as much flexibility as possible for nurses to comply with their continuing competency obligations, while ensuring that nurses continue to enhance their professional competence and update their clinical skills for the benefit of their patients.

There are no anticipated costs of compliance associated with the proposal. First, the proposal does not impose any new requirements on any Board regulated entity subject to the proposal. The majority of the proposed amendments are clarifying in nature and correct grammatical errors throughout the rule text. The few substantive changes included in the proposal, however, do not impose any new costs of compliance on any Board regulated entity. On the contrary, the proposal offers additional methods of compliance for nurses already required by statute and Board rule to complete continuing competency activities for licensure renewal.

For example, the Occupations Code §301.307 requires certain nurses to complete targeted continuing education courses relating to older adult or geriatric care. The existing rule implements this statutory requirement for the affected nurses. However, the proposal offers a less burdensome way for nurses to meet this statutory requirement by removing prescriptive language from the rule. While the affected nurses must still complete the required continuing education activities, the proposal offers an alternative means of doing so that will not result in any new costs of compliance.

Likewise, the proposal also recognizes courses that focus upon self-improvement, changes in attitude, self-therapy, and self-awareness that have an impact on nursing practice or improved patient outcomes as appropriate continuing education activities. This is a change from the current rule, which currently does not permit these courses to be considered for continuing competency credit. While nurses will still be required to complete the requisite amount of continuing competency activities required for licensure renewal, the proposal offers them new and alternative methods of doing so. Further, this proposed change is not expected to result in any new costs of compliance. The proposal offers new opportunities for nurses who are already required by statute and Board rule to complete continuing competency activities. Nurses are free to choose the most economical means of complying with continuing competency requirements, however, and the proposal may allow them additional opportunities to meet those requirements in the most economical means possible.

The Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045(b) because the proposed rule is not anticipated to result in new costs of compliance, is necessary to protect the health, safety and welfare of the residents of this state, and implements statutory requirements, as provided by §2001.0045(b) and (c).

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. The Government Code §2006.002(c) and (f) require, that if a proposed rule may have an economic impact on small businesses or micro-businesses or rural communities, state agencies must prepare, as part of the rulemaking process, an economic impact statement that assesses the potential impact of the proposed rule on these businesses and communities and a regulatory flexibility analysis that considers alternative methods of achieving the purpose of the rule. Section 2006.002(c-1) requires that the regulatory analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses." Therefore, an agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro-businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.

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 Government Code §2006.001(1-a) defines a rural community as a municipality with a population of less than 25,000.

The proposal does not impose any new costs on any entity regulated by the Board. As such, the Board is not required to prepare an economic impact statement and regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal is not expected to have an effect on existing agency positions; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal is not expected to have an effect on existing agency positions; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create new requirements, but instead, amends existing requirements by offering licensees alternative methods of compliance with the existing requirements; (vi) the proposal does not expand or repeal an existing regulation; (vii) the proposal does not increase or decrease the number of individuals subject to the rule; and (viii) the proposal does not have an effect on the state's economy.

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. Comments on this proposal may be submitted 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. Comments must be re­ceived no later than thirty (30) days from the date of publication of this proposal. If a hearing is held, written and oral comments presented at the hearing will be considered.

Statutory Authority

The amendments are proposed under the authority of the Occupations Code §§301.151, 301.303, and 301.307.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Sec. 301.303(a) provides that the Board may recognize, prepare, or implement continuing competency programs for license holders under Chapter 301 and may require participation in continuing competency programs as a condition of renewal of a license. The programs may allow a license holder to demonstrate competency through various methods, including: (1) completion of targeted continuing education programs; and (2) consideration of a license holder's professional portfolio, including certifications held by the license holder.

Section 301.303(b) provides that the Board may not require participation in more than a total of 20 hours of continuing education in a two-year licensing period.

Section 301.303(c) states that, if the Board requires participation in continuing education programs as a condition of license renewal, the Board by rule shall establish a system for the approval of programs and providers of continuing education.

Section 301.303(e) provides that the Board may adopt other rules as necessary to implement this section.

Section 301.303(f) states that the Board may assess each program and provider under this section a fee in an amount that is reasonable and necessary to defray the costs incurred in approving programs and providers.

Section 301.303(g) states that the Board by rule may establish guidelines for targeted continuing education required under this chapter. The rules adopted under this subsection must address: (1) the nurses who are required to complete the targeted continuing education program; (2) the type of courses that satisfy the targeted continuing education requirement; (3) the time in which a nurse is required to complete the targeted continuing education; (4) the frequency with which a nurse is required to meet the targeted continuing education requirement; and (5) any other requirement considered necessary by the board.

Section 301.307(a) states that, as part of a continuing competency program under Section 301.303, a license holder whose practice includes older adult or geriatric populations shall complete at least two hours of continuing education relating to older adult or geriatric populations or maintain certification in an area of practice relating to older adult or geriatric populations.

Section 301.307(b) provides that the Board shall adopt rules implementing the requirement under Subsection (a) in accordance with the guidelines for targeted continuing education under Section 301.303(g).

Section 301.307(c) states that the Board may not require a license holder to complete more than six hours of continuing education under this section.

Cross Reference to Statute. The following statutes are affected by this proposal: the Occupations Code §§301.151, 301.303, and 301.307.