The Texas Commission of Licensing and Regulation (Commission) provides this public notice that, at its regularly scheduled meeting held September 25, 2018, the Commission adopted amendments to the Texas Department of Licensing and Regulation's (Department's) Criminal Conviction Guidelines pursuant to Texas Occupations Code §53.025(a). The Criminal Conviction Guidelines are updated from the original guidelines published on December 5, 2003 (28 TexReg 11018) to include the Podiatry program.

The Criminal Conviction Guidelines (guidelines) describe the process by which the Department determines whether a criminal conviction renders an applicant an unsuitable candidate for the license, or whether a conviction warrants revocation or suspension of a license previously granted. The guidelines present the general factors that are considered in all cases and the reasons why particular crimes are considered to relate to each type of license issued by the Department.

In 2017, the 85th Texas Legislature enacted House Bill 3078 which provided for the transfer of the Podiatry program from the Texas State Board of Podiatric Medical Examiners to TDLR. On September 1, 2017, TDLR took over all licensing and regulatory functions of the program.

Dr. Michael Lunsford, Dr. Joe Martin, and Dr. Renee Pietzsch, members of the Podiatric Medical Examiners Advisory Board, were appointed to serve on an enforcement workgroup. Agency staff met with the enforcement workgroup on March 28, 2018, to develop the criminal conviction guidelines for the Podiatry program.

The Criminal Conviction Guidelines for the Podiatry program will become a part of the overall guidelines that are already in place for other Department programs. The Department presented the applicable guidelines to Podiatric Medical Examiners Advisory Board at its meeting on July 23, 2018, and received the Board's recommendation of approval.

The Criminal Conviction Guidelines for Podiatry program

Crimes against the person such as homicide, kidnapping and assault.

Reasons:

1. Licensees interact with adults, the elderly, the disabled and children in a provider/patient role. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes would pose a danger to the patients or others.

2. This occupation involves close proximity to and physical contact with patients, at times while they are sedated or otherwise incapacitated, as well as their care givers, family, friends, and others, not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

3. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving prohibited sexual conduct.

Reasons:

1. Licensees interact with patients and their care givers, family, friends, and others, as a provider and in a position of trust and authority. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the patients or others.

2. Podiatrists deal with individuals who are physically, emotionally and financially vulnerable. Persons who have a history of committing such crimes could exploit this position and would pose a danger to those individuals.

3. This occupation involves close proximity to and physical contact with patients, at times while they are sedated or otherwise incapacitated, and their care givers, family, friends, and others, not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

4. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving children, the elderly or the disabled as victims.

Reasons:

1. Licensees interact with patients and their care givers, family, friends, and others, as a provider and in a position of trust and authority. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the patients or others.

2. This occupation involves close proximity to and physical contact with patients, at times while they are sedated or otherwise incapacitated, as well as their care givers, family, friends, and others, not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

3. Podiatrists deal with individuals who are physically, emotionally and financially vulnerable. Persons who have a history of committing such crimes could exploit this position and would pose a danger to those individuals.

4. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes against property such as theft or burglary.

Reasons:

1. Licensees interact with adults, the elderly, the disabled and children in a provider/patient role. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes would pose a risk to the property of the patients.

2. This occupation involves close proximity to and physical contact with patients, at times while they are sedated or otherwise incapacitated, and their care givers, family, friends, and others, not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

3. Licensees would have access to the property of patients and their care givers, family, friends, and others.

4. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving fraud or deceptive trade practices.

Reasons:

1. Licensees interact with patients and their care givers, family, friends, and others, as a provider and in a position of trust and authority. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the patients or others or a threat to their economic assets.

2. Podiatrists deal with individuals who are physically, emotionally and financially vulnerable. Persons who have a history of committing such crimes could exploit this position and would pose a danger to those individuals.

3. This occupation involves close proximity to and physical contact with patients and their care givers, family, friends, and others not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

4. Licensees would have access to the property of patients and their care givers, family, friends and others not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

5. Licensees would have access to personal and confidential information of patients.

6. Licensees would have the ability to write unnecessary prescriptions for unlawful purposes and thereby pose a danger to the patients or others.

7. Licensees are potentially involved in the billing of clients, filing of insurance claims and filing of government documents.

8. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving the possession, possession with intent to deliver, possession with intent to distribute, delivery, distribution or manufacture of drugs or other dangerous substances.

Reasons:

1. Under Sections 202.502 and 202.506 of the Texas Occupations Code, the license of a person who has been convicted of a felony offense under the Texas Controlled Substance Act or the Texas Dangerous Drug Act, Chapters 481 and 483 of the Texas Health and Safety Code, or Section 485.033 of the Texas Health and Safety Code relating to inhalant paraphernalia, must be suspended, and that license must be revoked when the conviction becomes final.

2. Licensees interact with patients and their care givers, family, friends, and others, as a provider in a position of trust and authority, and they deal with individuals who are physically, emotionally and financially vulnerable. Persons who have a history of committing such crimes could exploit this position and would pose a danger to those individuals by providing them with drugs, controlled substances or other dangerous substances or by writing unnecessary prescriptions for unlawful purposes.

3. This occupation involves close proximity to and physical contact with patients and their care givers, family and friends not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

4. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes could exploit this position and their relationship with staff and thereby obtain drugs, controlled substances or other dangerous substances that might not otherwise be available to them.

5. Persons who have a history possession or dealing of unlawful drugs or other substances could potentially have drugs or other dangerous substances in their systems which would make them a danger to themselves or others.

6. These occupations provide persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving being under the influence of alcohol, drugs, or dangerous substances.

Reasons:

1. Under Sections 202.502 and 202.506 of the Texas Occupations Code, the license of a person who has been convicted of a felony offense under the Texas Controlled Substance Act or the Texas Dangerous Drug Act, Chapters 481 and 483 of the Texas Health and Safety Code, or Section 485.033 of the Texas Health and Safety Code relating to inhalant paraphernalia, must be suspended, and that license must be revoked when the conviction becomes final.

2. Licensees interact with adults, the elderly, the disabled and children in a provider/client role. Licensees also interact with staff of hospitals and clinics. Persons who have a history of committing such crimes would pose a danger to the patients or others.

3. This occupation involves close proximity to and physical contact with patients and their care givers, family and friends not only in hospitals, out-patient facilities and clinics, but also in private offices, assisted living facilities, nursing homes and residences.

4. Persons with this type of criminal history could potentially have alcohol, drugs or other dangerous substances in their systems which would make them a danger to their patients or others.

Crimes involving an attempt, conspiracy, or solicitation to commit an offense described in these guidelines.

Reasons:

1. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct and to complete the offense or offenses described by these guidelines.

2. Persons who have a history of committing such crimes would pose a danger to the patients or others.

3. Persons who have a history of committing such crimes would pose a risk to the property of patients or others.

Crimes involving the solicitation or referral of patients or involving disclosure of personal medical or identification information.

Reasons:

1. Licensees would have access to personal and confidential information of patients, including medical information.

2. Persons who have a history of committing such crimes would be in a position to exploit the person's knowledge of a patient's personal, confidential, and medical information and make unlawful referrals of patients to other medical practitioners for remuneration.

3. Persons who have a history of committing such crimes would be in a position to solicit and obtain patient referrals from other medical practitioners or other service providers for remuneration.

Crimes against public administration such as perjury, bribery, witness tampering, obstruction or retaliation, false alarm, or hindering an investigation, arrest or prosecution.

Reasons:

1. Honesty, integrity, trustworthiness, and a willingness to comply with the law are characteristics necessary for a person who provides health care and communicates with patients, and who is involved in billing patients, insurance companies and government health care programs. Offenses of this nature reflect a lack of honesty, integrity, trustworthiness, and a willingness to comply with the law.

2. Persons involved in offenses of this nature would have an opportunity to impede investigations into unlawful or improper podiatric or other medical practices or health care liability claims against the person or another medical professional about whom the person may have information.

3. Persons involved in offenses of this nature would have an opportunity to impede investigations into unlawful or improper billing practices or other investigations.

Crimes involving the practice of medicine or podiatry without a license.

Reasons:

1. Persons who practice medicine or podiatry without a license may not be sufficiently trained or proficient to make medical diagnoses or administer treatment and would pose a danger to patients.

2. Persons who practice outside the scope of their license may not be sufficiently trained or proficient to make medical diagnoses or administer treatment for conditions beyond the scope of their license and would pose a danger to patients.

A copy of the complete Criminal Conviction Guidelines is posted on the Department's website and may be obtained at www.tdlr.texas.gov. You may also contact the Enforcement Division at (512) 539-5600 or by email at enforcement@tdlr.texas.gov to obtain a copy of the complete guidelines.

TRD-201804235

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Filed: September 28, 2018