TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 8. PEER ASSISTANCE PROGRAMS FOR IMPAIRED PROFESSIONALS

26 TAC §§8.101, 8.103, 8.105, 8.107, 8.109, 8.111, 8.113, 8.115, 8.117, 8.119, 8.121, 8.123, 8.125

The Texas Health and Human Services Commission (HHSC) adopts new Chapter 8, concerning Peer Assistance Programs for Impaired Professionals. Section 8.105 is adopted with changes to the proposed text as published in the October 18, 2019, issue of the Texas Register (44 TexReg 5999); therefore, the rule will be republished. Sections 8.101, 8.103, 8.107, 8.109, 8.111, 8.113, 8.115, 8.117, 8.119, 8.121, 8.123, and 8.125 are adopted without changes to the proposed text as published in the October 18, 2019, issue of the Texas Register (44 TexReg 5999); therefore, the rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new rules move the Department of State Health Services (DSHS) rules in Texas Administrative Code (TAC) Title 25, Chapter 451 to 26 TAC Chapter 8 as part of consolidating all HHSC rules in TAC Title 26. The new rules are reorganized and updated, but do not make changes from the language currently in 25 TAC Chapter 451 that would result in new or increased requirements for a peer assistance program for impaired professionals or for any associated state licensing authority. The repeal of 25 TAC Chapter 451, Peer Assistance, appears elsewhere in this issue of the Texas Register.

COMMENTS

The 31-day comment period ended November 18, 2019. During this period, HHSC received comments from the Texas Nurses Association. A summary of the comments and HHSC's responses is below.

Comment: The commenter suggested changing §8.105(7), the definition of "mental health professional" so that it includes a person with either a master's degree or doctorate in nursing.

Response: HHSC agrees and made a revision to the rule to reflect that a mental health professional includes a "nurse, with at least a master's degree in nursing and national certification in substance use or psychiatric nursing."

Comment: The commenter suggested changing §8.105(9) to reference "nurse" rather than "licensed vocational nurse."

Response: HHSC declines to make the suggested change, as the definition is extracted directly from Texas Health and Safety Code §467.001(5).

Comment: The commenter suggested changing §8.121(c) so that a peer assistance program notifies the appropriate licensing or disciplinary authority if a professional fails to participate in the program, rather than notifying the person who reported the professional.

Response: HHSC declines to make the suggested change, as the requirement mirrors Texas Health and Safety Code §467.005(b).

STATUTORY AUTHORITY

The new sections are adopted under Texas Health and Safety Code Chapter 467, which requires HHSC to adopt minimum criteria for peer assistance programs for impaired professionals.

§8.105.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.

(1) Approved peer assistance program--A program designed to help an impaired professional which is:

(A) established or approved by a licensing or disciplinary authority;

(B) meets the criteria established by HHSC in this chapter; and

(C) meets any additional criteria established by the licensing or disciplinary authority.

(2) HHSC--The Texas Health and Human Services Commission.

(3) Impaired professional--An individual whose ability to perform professional services is impaired by a mental health or substance use condition.

(4) Impaired student--A student whose ability to perform the services of the profession for which the student is preparing for licensure would be, or would reasonably be expected to be, impaired by a mental health or substance use condition.

(5) Licensing or disciplinary authority--A state agency or board that licenses or has disciplinary authority over professionals.

(6) Mental health condition--A condition (excluding intellectual or developmental disability or a substance use condition) that substantially impairs an individual's:

(A) thought, perception of reality, emotional process, or judgment;

(B) behavior; or

(C) ability to participate in daily routines.

(7) Mental health professional--An individual licensed by the state as a:

(A) licensed chemical dependency counselor;

(B) licensed clinical social worker;

(C) licensed marriage and family therapist;

(D) licensed professional counselor;

(E) psychologist; or

(F) nurse, with at least a master's degree in nursing and national certification in substance use or psychiatric nursing.

(8) Peer assistance program--Identifies, assists, and monitors individuals experiencing mental health or substance use conditions that are, or are likely to be, job-impairing, so that the individuals may return to safe practice. Peer assistance programs offer support and assistance and have a rehabilitative emphasis rather than a disciplinary emphasis.

(9) Professional--An individual who may incorporate under The Texas Professional Corporation Law as described by Section 1.008(m), Business Organizations Code, or who is licensed, registered, certified, or otherwise authorized by the state to practice as a licensed vocational nurse, social worker, chemical dependency counselor, occupational therapist, speech-language pathologist, audiologist, licensed dietitian, or dental or dental hygiene school faculty member.

(10) Professional association--A national or statewide association of professionals, including any committee of a professional association and any nonprofit organization controlled by or operated in support of a professional association.

(11) Staff--All persons responsible for implementing a peer assistance program, whether employed, under contract, paid, or volunteer.

(12) Student--An individual enrolled in an educational program or course of study leading to initial licensure as a professional as such program or course of study is defined by the appropriate licensing or disciplinary authority.

(13) Substance use condition--A recurrent use of alcohol or drugs that causes clinically and functionally significant impairment, such as health problems, disability, and failure to meet major responsibilities at work, school, or home.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 7, 2020.

TRD-202000044

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: January 27, 2020

Proposal publication date: October 18, 2019

For further information, please call: (512) 487-3419